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Procurement – sub-contractors?

In April 2018, the government announced a new policy requiring main contractors and suppliers to advertise sub-contract opportunities (under their head contract with central government). 

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Drafting – ambiguity?

If a contract is clear and unambiguous, the court must apply it. Hence the importance of distinguishing between ambiguous and unambiguous wording.
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Exclusion clauses – ‘reasonableness’

The rules on exclusion clauses in UCT 1977 apply to both business and consumer contracts. In essence, any exclusion or restriction of liability for loss will be subject to a ‘reasonableness’ test (unless it relates to personal injury, in which case it will be void).

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Web – photo re-posting

The ECJ has held that the reposting of a photo is likely to require the authorisation of the copyright owner – even if it is already published on the web.

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Force majeure – sole cause

If force majeure arises (eg war) then contractual obligations come to an end (subject to the obligation to use ‘reasonable endeavours’ to avoid the force majeure incident).

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Insolvency – assignment of claim

Administrators, trustees in bankruptcy, and liquidators can assign a claim or course of action belonging to the insolvent party. But, in any assignment there is a potential risk of a non-party costs order being made if the claim is ultimately unsuccessful. Ideally, therefore, an indemnity will be obtained from the person the claim is being assigned to.

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CGT – entrepreneurs relief

An important CGT relief is provided via entrepreneurs relief – but that is lost if the tax-payer’s holding falls below 5%.

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Contract – duty of good faith?

To what extent can you imply a duty of 'good faith' into a commercial contract? The position under English law is that contracting parties do not owe a general duty of good faith to each other (unless there is a fiduciary relationship). This is different from the approach in many civil law jurisdictions (where a duty of good faith is included in the Civil Code). In Yam Seng [2013] a High Court judge did imply a general duty of good faith into a particular contract, but judges since then have tried to limit the effect of that case. In effect, a duty of good faith will not be implied unless a contract would otherwise lack commercial and practical coherence.

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Contract – implication or interpretation?

There is a fundamental difference between implying an implied term into a contract, and interpreting an express term of that contract. The rules for implying are stricter than those for interpreting.

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Bank reference – third party liability

The Playboy casino used an agent to get a bank reference for a gambler before granting him credit. The bank that gave the reference was unaware that it would be passed to, and relied on, by Playboy. In due course, the gambler’s cheques to Playboy (worth £1.25m) bounced. Accordingly, Playboy sued the bank for negligent misstatement (ie a defective credit reference).

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