Category Archives: Interpretation
Jonathan Chu, ‘The place of deemed fulfilment of condition’
EXTRACT Where, on the face of a contract, the existence of a debt is conditional on the occurrence of a particular fact, and that fact has not occurred, because the person who promised payment has prevented it from occurring, does the debt arise nevertheless on the notion that the condition is then to be deemed […]
Felicia Grey, ‘Contractual Clarity, Context and Commercial Common Sense: Is There a Hierarchy of Approaches under English Law?’
ABSTRACT This study uses a doctrinal analysis of case law to examine whether there is hierarchy of approaches when interpreting commercial contracts in English courts. Using cases from Prenn v Simmonds to Wood v Capita, it shows how the latter has become the latest authority on commercial contractual construction. The study finds that Wood v […]
‘Contract terms, certainty and reasonable endeavours clauses’
Melody Hadfield considers the High Court’s decision in Salem v Salem and the enforceability of ‘reasonable endeavours’ clauses. In Salem and Another v Salem and Others [2024] EWHC 3311, a clause requiring the parties to use ‘reasonable endeavours’ to agree a process for an expert determination was deemed unenforceable. The clause was contained in a […]
Williams Iheme, ‘Defects of English Rules of Contractual Interpretation and Their Challenges for African Businesses’
ABSTRACT The Law Society of England and Wales, as well as English politicians and judges, claim that English (contract) law is admirable, settled and predictable, and non-English legal systems are ‘laxer systems’ whose judges are not as exceptionally knowledgeable as English judges. These claims of legal superiority attract foreign litigants such as African businesspeople to […]
‘Contractual interpretation: eSIMplified’
In Kigen v NOR Capital, the High Court was asked to interpret a clause to determine whether a ‘Success Fee’ was payable by one party to the other. In a useful illustration of how to apply the established principles of contractual interpretation, the court found no Success Fee was payable … (more) [A&O Shearman, 9 […]
‘Re-designing rights to terminate on reasonable notice’
In Zaha Hadid Ltd v The Zaha Hadid Foundation, the High Court confirmed that agreements of indefinite duration would not necessarily be interpreted to include bilateral termination rights and that the absence of such rights did not mean the relevant agreements operated in restraint of trade … (more) [A&O Shearman, 7 January 2025]
Rohan Havelock, ‘Speech, writing and contractual interpretation’
INTRODUCTION It has been observed that the invention of the alphabetic writing system enabled text to stand alone as an explicit and adequate representation of meaning, relying substantially less on prior knowledge, expectancies and assumptions on the part of the reader. Combined with the advent of the printing press in the fifteenth century, the writing […]
‘Consumer Contracts Have Many Problems, but “Readability” May Not Be One’
Yonathan A Arbel, ‘The Readability of Contracts: Big Data Analysis’, 21 Journal of Empirical Legal Studies (forthcoming, 2024), available at SSRN (January 1, 2023). Probably all law professors, even textualists, have experienced frustrations with overly rigid applications of supposed rules about language. For example, they’ve encountered editors who require that all contractions be spelled out […]
Miriam Goldby, ‘Force majeure in the Supreme Court: MUR Shipping BV v RTI Ltd [2024] UKSC 18’
Force majeure (FM) clauses are designed to free both parties to a contract from liability when an event beyond their control prevents one or both of them from performing the contract. Examples of such events include inclement weather, natural catastrophes, political upheaval, changes in applicable rules or regulations, or unavailability of essential supplies or services. […]
‘Rate Expectations: English court implies reasonable alternative to LIBOR’
The English court has implied a term into an agreement referencing three-month USD LIBOR. The term implied was that if LIBOR no longer functions, the calculation should be performed using a reasonable alternative rate as at the date the calculation is to be made … (more) [Andrew Denny and Jason Rix, A&O Shearman, 25 October […]