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Article
Publication date: 4 October 2011

Andrew Milner

The purpose of this paper is to analyse the practical policy arguments that support the exclusion of pre‐contractual negotiations in the interpretation of written…

Abstract

Purpose

The purpose of this paper is to analyse the practical policy arguments that support the exclusion of pre‐contractual negotiations in the interpretation of written contracts, and the more principled arguments for allowing such evidence to be admitted. This paper proposes that the exclusionary rule be relaxed in certain limited circumstances.

Design/methodology/approach

The paper adopts a black‐letter law approach focusing heavily upon the principles of law itself. It analyses the arguments for and against admitting pre‐contractual negotiations in the interpretation of written contracts through examining key court judgments, key journal articles and leading text under English law and other common law jurisdictions.

Findings

The findings show that the arguments advanced in support of the exclusionary rule, whilst of great significance, are not that convincing. The arguments for relaxing the exclusionary rule in certain limited circumstances are very strong.

Research limitations/implications

Empirical study may show that the arguments in support of the exclusionary rule are not in practice as significant as postulated. The paper is focused on the law of England and Wales.

Practical implications

This paper will be instructive to commentators, lawyers, academics and students in the field of commercial contract law and parties to contracts.

Originality/value

The paper contributes to pushing back the boundaries of the developing law in the interpretation of written contracts.

Details

International Journal of Law in the Built Environment, vol. 3 no. 3
Type: Research Article
ISSN: 1756-1450

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Article
Publication date: 1 May 1981

Jo Carby‐Hall

In attempting an examination of the contractual and normative concepts of the collective agreement, some ideas are tentatively put forward in the pages which follow hoping…

Abstract

In attempting an examination of the contractual and normative concepts of the collective agreement, some ideas are tentatively put forward in the pages which follow hoping that they will stimulate the reader's mind and open areas for further discussion.

Details

Managerial Law, vol. 23 no. 5
Type: Research Article
ISSN: 0309-0558

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Article
Publication date: 7 March 2016

Malcolm John Dowden

The purpose of this paper is to consider the impact on rent review clauses of a recent UK Supreme Court ruling on the interpretation and application of contractual

Abstract

Purpose

The purpose of this paper is to consider the impact on rent review clauses of a recent UK Supreme Court ruling on the interpretation and application of contractual provisions. Although the ruling in Arnold v. Britton (2015) UKSC 36 concerned service charge provisions, the court’s approach has significant implications for rent reviews where a fixed or indexed increase is intended.

Design/methodology/approach

Review of the Supreme Court’s approach and findings in a case concerning clauses that provided for fixed percentage increases in long leases.

Findings

It is no part of the court’s function, through the process of contractual interpretation, to rescue a party from a bad bargain.

Research limitations/implications

Supreme Court ruling in Arnold v. Britton was considered in the context of recent rulings on rent review clauses.

Practical implications

When drafting for a fixed or stepped increase at rent review, parties must ensure that any formulae or other provisions governing calculation produce results that are fair and in line with the parties’ actual intentions. The court will not use the process of contractual interpretation to rescue a party from a bad bargain, and will not intervene to override clear wording. Although the court has power to decide in favour of commercial common sense where a clause is ambiguous or unclear, there is a limit to the “red ink” that the court can apply, and no room for remedial interpretation where a clause is clear.

Social implications

Where contract provisions are clear it is not open to the court to intervene, by means of contractual interpretation, to protect or to rescue a party who has been disadvantaged, however seriously, if the clause is clear. Where such cases arise in a contract covered by English law, or in similar common law jurisdictions, any protection must be found in statute.

Originality/value

Practitioner’s review and comments on recent Supreme Court authority.

Details

Journal of Property Investment & Finance, vol. 34 no. 2
Type: Research Article
ISSN: 1463-578X

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Article
Publication date: 1 March 2015

Peter Kamminga

Defense acquisition programs are plagued by surging delays and cost overruns. In particular, contract management of defense acquisition programs has been identified as…

Abstract

Defense acquisition programs are plagued by surging delays and cost overruns. In particular, contract management of defense acquisition programs has been identified as 'high risk' - and threatening to project results. This article examines how contracts, as legal mechanisms, may be disruptive and obstruct cooperation between the DoD and contractors. The main observation this article makes is that tensions between the norms set forth in contracts and other non-legal norms can become a major reason for problems in defense procurement. It explains why these tensions may undermine cooperative behavior between contractors and the DoD and can become a source of disappointing acquisition program results. A framework is provided for identifying such tensions, and contract design principles are proposed to enhance cooperation and eliminate these tensions when drafting contracts for defense acquisition and other complex programs.

Details

Journal of Public Procurement, vol. 15 no. 2
Type: Research Article
ISSN: 1535-0118

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Article
Publication date: 1 April 1997

Georgios I Zekos

The legal ramifications of the bill of lading continued to develop in the nineteenth century in the American Law. The bill of lading and the implications of its issue…

Abstract

The legal ramifications of the bill of lading continued to develop in the nineteenth century in the American Law. The bill of lading and the implications of its issue began to be reported in many cases as early as the beginning of the 19th century. The leading cases of Delaware and Pollard v Vinton before the supreme court of the United States illustrate the position occupied by the bill of lading from its first steps in the world trade under the interpretation given by the American courts.

Details

Managerial Law, vol. 39 no. 4
Type: Research Article
ISSN: 0309-0558

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Article
Publication date: 29 July 2014

Malcolm Dowden

The purpose of this legal update is to examine the recent case law relating to rent review in England and Wales. The paper argues that as rent terms have reduced in…

Abstract

Purpose

The purpose of this legal update is to examine the recent case law relating to rent review in England and Wales. The paper argues that as rent terms have reduced in length, and as market conditions have tended to produce nil-uplifts, there have been relatively few review cases before the court. Cases that reach court tend to fall into two broad categories: contractual interpretation and challenges to third-party determination.

Design/methodology/approach

Review and analysis of case law in England and Wales.

Findings

There are no special rules for interpreting rent review clauses. The court's approach to contractual interpretation follows House of Lords and Supreme Court rulings culminating in Rainy Sky SA v Kookmin Bank (2011). There are also very limited circumstances in which the court will set aside an arbitrator's award, informed by a policy that favours upholding arbitration awards as a quick and cost-effective way to settle rent review disputes.

Practical implications

Rent review clauses must be interpreted in accordance with the normal rules of contractual interpretation. The court is unlikely to be swayed by submissions asserting the “general purpose” of rent review.

Originality/value

This is an original analysis of case law.

Details

Journal of Property Investment & Finance, vol. 32 no. 5
Type: Research Article
ISSN: 1463-578X

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Article
Publication date: 1 February 1997

Georgios I. Zekos

Bills of lading had been in use a long time before the first attempts for the standardisation of their terms occurred. Their utility as legal documents was recognised…

Abstract

Bills of lading had been in use a long time before the first attempts for the standardisation of their terms occurred. Their utility as legal documents was recognised after they have been circulated and used in international trade for some time. More clauses purporting to absolve the carrier from liability were introduced in the content of the bill of lading . A formula for the establishment of minimum liability of the carrier was adopted by a series of conferences after the first world war, in order to stop the practice of contracting in ways which would unduly favour the carrier. The whole effort has resulted in the emergence of the international convention for the unification of certain rules relating to bills of lading 1924. In modern days this document started to be used as a register in the book of loading and after years of practice has established as a new document. A bill of lading is a fundamental and vital document of international trade and commerce, indispensable to the conduct and financing of business involving the sale and transportation of goods between parties located at a distance from one another. A bill of lading has commonly been said to have three characteristics : 1} a contract for the carriage of the goods 2} an acknowledgement of their receipt and 3} documentary evidence of title . However, there is an uncertainty and dispute about its contractual nature. The significance of the establishment of the contractual role of bills of lading based on the necessity that any contractual party should know the final terms of the contract upon which the terms of the International Conventions will be implied to. Contractual terms must not be different to these stated by the International Conventions. Is the bill of lading the contract of carriage upon which the terms of the International Conventions are implied to? In this first article it is proposed to investigate the contractual role of bills of lading as it has been perceived in the different international conventions. The analysis will be based mainly on arguments which have arisen from the content of the conventions themselves, than by investigating the national Acts which were introduced in order to implement the international conventions. Reference to other sources, such as court decisions or views of various scholars, will be made in case that there is a straight relation with the construe of the conventions themselves. The main scope is to find out how the international practice is reflected in the writing of the conventions. This article will be the first of a series of articles which will follow and where their contractual role under the Creek, United States and English law will be investigated.

Details

Managerial Law, vol. 39 no. 2
Type: Research Article
ISSN: 0309-0558

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Book part
Publication date: 30 March 2020

Barry Collins

The issue of employment status lies at the heart of much conflict in the gig economy, with many gig economy workers effectively excluded from statutory employment…

Abstract

The issue of employment status lies at the heart of much conflict in the gig economy, with many gig economy workers effectively excluded from statutory employment protection because of it. Establishing employment status continues to be the gateway to accessing most UK statutory employment rights, a fact which makes the exclusion of casual workers from much statutory protection seem arbitrary and unjust. Employment status has been historically determined by common law conceptions of the contract of employment. This creates particular difficulties for casual workers, who have typically had to prove a requirement to perform personal service and to show that the contract was based on mutual obligations in order to be recognised as employees. The advent of the gig economy has seen the concept of employment status evolve as courts and legislators have struggled to adapt to a more flexible labour market. Likewise, gig economy employers have gone to considerable lengths to try to circumvent the legal protections available to their workers. This chapter will examine the evolving role of common law doctrine in defining employment status and the emergence of the category of ‘worker’ as an definition of employment status for those who work in the gig economy. It will analyse prominent cases involving gig economy employers (such as Uber BV v Aslam) and explore how these cases have re-defined contractual doctrine. Finally, the chapter will analyse the Taylor Review (2017) and examine the viability of a conceptual uncoupling of statutory employment protection from contractual doctrine.

Details

Conflict and Shifting Boundaries in the Gig Economy: An Interdisciplinary Analysis
Type: Book
ISBN: 978-1-83867-604-9

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Article
Publication date: 5 July 2013

Malcolm Dowden

This paper aims to examine the English court's approach to the interpretation of rent review provisions in circumstances where the words used by the parties may produce a…

Abstract

Purpose

This paper aims to examine the English court's approach to the interpretation of rent review provisions in circumstances where the words used by the parties may produce a commercially unforeseen or undesirable result. It emphasises that, while the court has wide discretion to adopt a purposive approach, and to interpret an agreement in a way that produces a result in accordance with “business common sense”, there must first be some ambiguity in the wording. The court cannot rewrite a contract where the parties simply failed to foresee or to provide for unexpected market conditions (here, a “double‐dip” fall in rental values).

Design/methodology/approach

The paper examines the Court of Appeal ruling in Scottish Widows v. BGC International [2012] EWCA Civ 607 as an example of the limits of the court's ability to arrive at commercially sensible results through purposive interpretation.

Findings

It concludes that where a clause has been drafted by experienced and skilled solicitors, the court is unlikely to intervene unless it is clear that there is a mistake in the language or syntax. The court will not rewrite an agreement where the parties did not anticipate adverse market factors.

Practical implications

The paper identifies the key factors taken into account when the court is considering either interpretation or rectification of a clause that has produced a commercially undesirable result. It also discusses the extent to which pre‐contractual negotiations may be relevant to interpretation or rectification of a contract.

Originality/value

The paper sets out the author's reading as a commercial real estate practitioner of key judicial dicta on the interpretation and effect of rent provisions.

Details

Journal of Property Investment & Finance, vol. 31 no. 4
Type: Research Article
ISSN: 1463-578X

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Article
Publication date: 12 September 2008

Pedro Barasnevicius Quagliato

Precontractual liability may be imposed when a party acts in bad faith to damage the other party, when a party negotiates in order to discover business secrets with no…

Abstract

Purpose

Precontractual liability may be imposed when a party acts in bad faith to damage the other party, when a party negotiates in order to discover business secrets with no intention of reaching a final agreement, or when a party to a non‐binding letter of intent terminates negotiations during a later phase of negotiations without legitimate reason. The purpose of this article is to clarify the concept of the duty to negotiate in good faith, either for Civil Law or Common Law system practitioners.

Design/methodology/approach

The paper describes the concept of good faith and fair dealing and its effects on the negotiation process. After establishing this description, we will analyze the differences in the interpretation and the application of the concept of good faith in the pre‐contractual procedure. The article explores the Civil Law approach for this matter, followed by the Common Law approach. In order to illustrate the Common Law System, we will focus on English and American Law, while we will look mainly at German, Brazilian and French Law to illustrate the Civil Law. In the conclusion, we will compare the approaches of the two systems.

Findings

The obligation of good faith in negotiation is found practically in all civil law system countries and generally provides a remedy for a wrongful conduct produced by a bad faith act. However, there is no general rule in Common Law requiring the parties to negotiate in good faith. We are in favor of applying a more expansive view of good faith obligations for international business transactions involving two or more different countries from these two different legal systems (civil law and common law), so as to apply them to the duty to negotiate arising from preliminary agreements and negotiations.Although there is no general rule about pre‐contractual liability in the common law system, we strongly believe that the existing body of case law and statutes may punish a party which engages in unfair conduct at the pre‐contract stage if the parties had signed a letter of intent or a memorandum of understanding, requiring them expressly and clearly to “act in good faith” and/or “to use their best efforts to reach an agreement”.

Originality/value

This article has discussed a relatively unexplored area related to the obligation of good faith in negotiation either for civil law and common law's practitioners. Our research has highlighted the complexity of this matter between these two legal systems, and has helped to the identification of the concept of good faith in a relation between two or more parties.

Details

International Journal of Law and Management, vol. 50 no. 5
Type: Research Article
ISSN: 1754-243X

Keywords

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