The Practical Lawyer


Warranty – directors

Share purchase agreements often contain exclusion clauses in which the seller will agree that if it is sued under the warranties, it will then not seek a contribution from either the target company or any directors/employees of the target who may have been involved with the seller in agreeing to and making disclosures under the warranties.

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Minimum purchase – penalty?

Contracts often state that a fixed, or easily calculated, sum has to be paid if one party is in breach.

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Unfair Contracts – ‘read and understood’

Under the Unfair Terms in Consumer Contracts Regs 1999 a contractual clause can be rendered void, through being ‘unfair’ if, ‘contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer’.

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Contracts – Rome II

Rome II introduces important changes on the ‘applicable law’ rules when dealing with foreign claims. Note that Rome II only applies to non-contractualclaims (eg torts) but it has implications for commercial contracts.

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Administration – pre-packs

These days, everyone knows what pre-packs are (a company is placed into administration, and then almost immediately sold off – often to its former management or owners). The controversy about pre-packs, of course, is the lack of transparency, and the fact that creditors are denied the opportunity to vote on the administrator’s proposals, with creditors effectively being presented with a fait accompli.

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Mistake – voluntary dispositions

The law on unilateral mistakes, in respect of voluntary dispositions, seems to be widening.

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Memorandum – changes

Under CA 1985, the memorandum of a company limited by shares must state: the name of the company; its registered office; its objects; a statement of limited liability; the amount of share capital; the number of shares each subscriber takes; and whether it is a public company.

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Trade mark – ‘consequential association’

The Advocate General has given an important opinion on lookalike replicas.

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Customer service – harassment

The CA has given a judgment that is of potentially enormous significance for credit control and customer service departments. What the CA found was that computer-generated correspondence from British Gas could amount to harassment under the Protection from Harassment Act 1997, and so entitle the customer to damages.

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D&O – insolvency enquiries

Does Directors & Officers insurance cover extend to the costs of co-operating on an insolvency?

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