Tag: interpretation

Contracts: Which Meaning Prevails?

What does your contract mean? Perhaps not what you intended… Words vs Purpose The courts interpret contracts based on examining each word (the literal approach focusing on language) and business common sense (the ‘purposive’ approach focusing on practical implications). Although language should be the surest guide as to what the

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What is Assignment?

Assignment is a transfer of rights from one person to another. It is trite law that it is, in any event, impossible to assign ‘the contract’ as a whole, i.e. including both burden and benefit. The burden of a contract can never be assigned without the consent of the other

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Delay Damages: Busting the Myths

One of my favourite activities in contract workshops when we are reviewing time, is to ask whether the Wembley damages of £120,000 per day are a penalty or fully recoverable by the client (notwithstanding arguments about whether the contractor is entitled to an extension of time). Myths Invariably some of

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The Swing of the Payment Pendulum

Getting paid is a perennial problem in construction. The Construction Acts 1996 and 2009 were meant to help. They were meant to prevent employers and main contractors withholding monies due without any/good reasons. But do they? The evidence In 2018, the Federation of Master Builders lambasted employers and main contractors 

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Apply Common Sense

When a court or tribunal interprets your carefully crafted contract, it doesn’t ask your opinion. It reviews the written terms to analyse ‘what a reasonable person having all the [parties’ then] background knowledge… would have understood… the language in the contract to mean‘. As they are not mystics, the courts

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Edit ruthlessly

My 10 tips to improve your legal writing recommend you spend time ruthlessly crossing through, deleting or rewording your text. Whenever you can shorten a sentence, do. And one always can. The best sentence? The shortest. Gustave Flaubert You need to edit your text to create a document which suits

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What Does It Mean?

Courts are regularly called upon to interpret contracts ie work out what they and their terms mean. You can avoid these sort of complex, circular or meaningless arguments by writing down clearly and simply what you have agreed. The court tends to apply a mix of the actual words (a

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Must You Write Must?

One of the wonders of English is the rich nuances our language permits. That richness, combined with modern usage – whether legal or otherwise – also creates confusion. A major issue for drafters and interpreters of legal documents is the use and abuse of mandatory and permissive verbs. Mandatory verbs

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When is An Offer Not an Offer?

When is an offer not an offer but the award of a contract? When its a snake in the grass? The TCC recently has to grapple with the rights of the parties under a framework agreement, in unusual circumstances. What is a framework agreement? A framework agreement normally allows an

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