Legal: Speaking doesn’t make it so

first_imgThe most momentous legal judgment to hit construction law in recent times is Rock Advertising Ltd vs MWB Business Exchange Centres Ltd, handed down by the Supreme Court on 16 May 2018. This case looked at the validity of so-called “no oral modification” (NOM) clauses – clauses commonly found in construction contracts and consultants’ appointments stating that any contractual amendment to the terms and conditions must be in writing to be effective. The Supreme Court recognised the academic, jurisprudential and practical importance and interest in this case stating: “Modern litigation rarely raises truly fundamental issues in the law of contract. This appeal is exceptional.” Readers will have their subjective tangible experience of oral discussions where certain terms and conditions in a construction contract have been to some extent modified or varied – but are such oral agreements reached in site meetings now good enough to circumvent a “no oral modification” clause? The Supreme Court decided that a ‘NOM’ clause was absolutely effective to prevent the parties agreeing a subsequent variation save in accordance with its express requirements This case concerned a lease of serviced offices by Rock from MWB. A revised schedule of payments was agreed orally on the phone between MWB’s credit controller and Rock’s sole director which, in financial terms, was worth slightly less to MWB. The lease contained a clause requiring all variations to be in writing and signed before they took effect, as follows: “This licence sets out all of the terms as agreed between MWB and licensee. No other representations or terms shall apply or form part of this licence. All variations to this licence must be agreed, set out in writing and signed on behalf of both parties before they take effect.”At first instance, the judge held that although an oral variation (supported by consideration) had been agreed, it was ineffective because of the NOM clause, such that MWB could claim arrears without regard to the orally agreed variation. The Court of Appeal reversed the judge’s decision, in keeping with the recent trend towards such clauses having limited or no effect. This was on the basis that it was considered that NOM clauses could be overridden by oral agreement due to so-called party autonomy. Put another way, it was thought that parties with freedom of contract cannot bind themselves as to their future agreements. English courts followed Judge Cardozo’s well-known 1919 judgment in the New York Court of Appeals in Beatty vs Guggenheim Exploration Co, where he said: “Those who make a contract, may unmake it.” The recent trend towards such clauses having limited or no effect […] has now all changed […] ‘nom’ clauses will now have a real, decisive impact in construction lawThis has now all changed with Rock vs MWB. The Supreme Court decided that a NOM clause was absolutely effective to prevent the parties agreeing a subsequent variation save in accordance with its express requirements – subject only to a party being able to establish an estoppel specifically preventing reliance upon the precise NOM clause. Lord Sumption gave the judgment, which had the support of the majority in the Supreme Court. He drew attention to the commercial advantages of NOM clauses, such as certainty and preventing attempts to undermine agreements by informal means, which may be open to abuse. The construction industry will now need to look at the precise terms of the NOM in each contract or appointment to ensure that modifications or amendments of the terms are codified in accordance with the NOM – otherwise the written words in the contract continue to be effective, bind and regulate each party’s rights and obligations. Readers will note that the only lifeline may be to argue that the other party cannot rely on the particular clause – in other words argue that there has been a waiver and estoppel. While the strict approach of Lord Sumption may sometimes be mitigated by the availability of estoppel, that may be a blunt tool (as the failure of the estoppel argument in the Rock Adverting shows). For example, it will not be effective where the employer resiles from the oral agreement before the contractor has any opportunity to rely on it, and where estoppel does operate, in some cases it could prove only temporary in effect. Lord Sumption also appears to have limited the scope for estoppel to mitigate this new approach to NOM clauses, by saying that: there would at the very least have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its informality, andsomething more would be required for this purpose than the informal promise itself.Academics are already considering whether the minority judgement in the Supreme Court was better. It does not matter in practice – “no oral modification” clauses will now have a real, decisive impact in construction law.last_img read more

Girls hoops roundup: Muskegon Heights, Reeths-Puffer and Ludington claim Tuesday victories

first_img ENDS IN Shares Inappropriate / Offensive (35309) Thank you! This will help us improve your ad experience. We will try not to show you such ads again. $22.99 ENDS IN Report a problem This item is… × $20.00$233.61 Thank you! This will help us improve your ad experience. We will try not to show you such ads again. Thank you! This will help us improve your ad experience. We will try not to show you such ads again. Add Comments (Max 320 characters) Displayed poorly Displayed poorly Displayed poorly Displayed poorly DEAL OF THE DAY Sports Illustrated Bestseller NBC Sports ENDS IN × Thank you! This will help us improve your ad experience. We will try not to show you such ads again. Report a problem This item is… $14.99 FOX Sports: Stream live NFL, College Footbal… Inappropriate / Offensive $9.99 ENDS IN ENDS IN Other Add Comments (Max 320 characters) Mail DEAL OF THE DAY Thank you! This will help us improve your ad experience. We will try not to show you such ads again. Displayed poorly Fox Sports Go $0.00 (32825) Other × Not relevant Other Not relevant (3879) $0.00 ENDS IN ENDS IN Add Comments (Max 320 characters) × Report a problem This item is… Inappropriate / Offensive Add Comments (Max 320 characters) Inappropriate / Offensive Ads by Amazon Add Comments (Max 320 characters) Inappropriate / Offensive Inappropriate / Offensive $19.38 Not relevant Not relevant DEAL OF THE DAY DEAL OF THE DAY × (5153) Lemedy Women Padded Sports Bra Fitness Wo… Report a problem This item is… DEAL OF THE DAY 0 Other × Range: Why Generalists Triumph in a Special… Twelve Share $0.00 Other Bestseller Bestseller Report a problem This item is… Nuun Sport: Electrolyte Drink Tablets, Citru… × ENDS IN × Ads by Amazon (8133) Bestseller Not relevant Not relevant Thank you! This will help us improve your ad experience. We will try not to show you such ads again. DEAL OF THE DAY Shop Now Bestseller Add Comments (Max 320 characters) Inappropriate / Offensive Displayed poorly Bestseller Displayed poorly Other Inappropriate / Offensive (975) LocalSportsJournal.comThe Muskegon Heights girls basketball team cruised to a 52-38 victory over Kent City Algoma Christian on Tuesday night.The Tigers built a 30-20 lead at halftime.Rhayshanique Anderson led Muskegon Heights with 19 points, while Jakayla Anderson added 12 points, eight rebounds, five steals and four blocks.GODWIN HEIGHTS 34, ORCHARD VIEW 17 – The Cardinals were unable to overcome a 19-6 halftime deficit. Janaya Ferrell led Orchard View with seven points and 12 rebounds.REETHS-PUFER 58, HOLLAND 26 – The Rockets wasted no time, outscoring Holland 26-3 in the first quarter. Artrese Williams led Reeths-Puffer with 12 points while Brooke Larabee added 10 points.LUDINGTON 66, WHITEHALL 30 – Jenna Keson scored 20 points to lead the Ludington girls basketball team to a big win over Whitehall on Tuesday night. The Orioles improved to 2-0 while the Vikings dropped to 1-2. Julie Brown recorded a double-double with 13 points and 12 rebounds for Whitehall.GRAND RAPIDS CATHOLIC CENTRAL 56, MUSKEGON 34 – The Big Reds were outscored 17-4 in the second quarter and trailed 33-13 at halftime. Tess Ens scored 14 to lead GRCC, while Sophia Karasinski had 12. Daz’sha Day paced the Big Reds with seven points. Add Comments (Max 320 characters) Report a problem This item is… Bestseller Share Thank you! This will help us improve your ad experience. We will try not to show you such ads again. Other Other Not relevant Displayed poorly Thank you! This will help us improve your ad experience. We will try not to show you such ads again. Bestseller Report a problem This item is… (1445) Add Comments (Max 320 characters) DEAL OF THE DAY (832) Not relevant Report a problem This item is… DEAL OF THE DAYlast_img read more