Drafting and negotiating commercial contracts / Mark Anderson and Victor Warner.

Format:

Book

Author/Creator:

Anderson, Mark, author.

Warner, Victor, author.

Language:

English

Subjects (All):

Commercial law.

Contracts.

Physical Description:

1 online resource.

Edition:

5th ed.

Distribution:

London : Bloomsbury Publishing, 2023.

Place of Publication:

London : Bloomsbury Professional, 2023.

System Details:

text file HTML

Summary:

This book is the 'one-stop-shop' for practical contractual matters, making it essential reading for anyone involved in negotiating and drafting commercial contracts. Answering questions such as 'How do I draft my contract clearly?', 'What will happen if my contract is interpreted by the English court?' and 'Why are liability clauses so full of legal jargon?', the book includes: - A guide to the common legal issues in negotiating and drafting contracts - An explanation of the structure and content of a commercial contract - The meaning and use of commonly-used words, phrases and legal jargon - An explanation of key UK contracts legislation, including the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015 - Steps to take, and what to check for in a contract to eliminate errors - Practical measures to protect documents from unwanted alteration, to remove metadata and sensitive information and to secure documents Fully updated to take account of important court decisions regarding the interpretation of contracts and changes in consumer legislation, the Fifth Edition also includes: - A new chapter on termination of contracts - New material on administering of existing contracts and modern methods of executing documents (eg DocuSign) - New and updated examples of contract drafting techniques - Additional definitions of legal terms used in contracts

Contents:

Intro

Preface

Table of Statutes

Table of Statutory Instruments

Table of Cases

Chapter 1 Legal formalities for a binding contract

Key points

1.1 Introduction

1.2 Checklists for legally binding contracts

1.2.1 Checklist for formation of the contract

1.2.2 Checklist of what will make a contract invalid or void

1.2.3 Checklist of matters which might make the contract or particular provisions unenforceable

1.2.4 Examples of when a contract will be found

1.3 Pre-contractual documents

1.3.1 Introduction

1.3.2 Terminology

1.3.3 Types of document

1.4 Must the contract be in writing?

1.5 Other requirements as to the form of the contract: advantages of deeds

1.5.1 Use of seals

1.6 No formalities for execution of contracts under hand

1.7 Formalities for execution of deeds by individuals

1.8 Formalities for execution of deeds by UK companies formed or regulated by the Companies Act 2006

1.9 Formalities for execution of deeds and contracts under hand (made under English law) by foreign companies

1.10 Signing before the provisions of the agreement are finalised (or other situations when a signature page is signed separately from the rest of an agreement)

1.10.1 Documents which are deeds or are contracts for the sale or other disposition of an interest in land

1.10.2 Documents which are contracts and are not signed as deeds

1.11 The use of electronic signatures

1.12 Information that a party needs to include about itself in contractual and non-contractual documents

Chapter 2 The structure and format of the contract

2.1 Introduction

2.2 Main elements of a typical contract document

2.3 Title

2.4 Date of agreement

2.4.1 Which date should be inserted?

2.4.2 Reasons for dating an agreement

2.4.3 What format to use for the date.

2.4.4 Not adding a date of agreement

2.4.5 Date of agreement and the effective date (or the commencement date)

2.5 Names and addresses of the parties

2.6 Recitals or background

2.6.1 Purpose of recitals

2.6.2 What not to include in the recitals

2.6.3 Are recitals needed at all?

2.6.4 Wording to use, and not use, in a recital

2.6.5 Layout and number of recitals

2.6.6 Recitals and overseas practice

2.7 Operative provisions-introductory wording

2.8 Definitions

2.8.1 Location of definitions

2.8.2 Introductory wording

2.8.3 Use of capital letters

2.8.4 Order of definitions

2.9 Conditions precedent and subsequent

2.10 Sequence of clauses

2.11 Schedules

2.12 Signing the agreement

2.12.1 Execution clauses

2.12.2 Signature blocks

2.13 Clause numbering

2.14 Headings

2.15 Engrossments (final version ready for signature) and counterparts

2.16 Alternative formats-letter agreements

terms in schedules

2.16.1 Letter agreements

2.16.2 Provisions set out in a schedule

2.17 Obsolete drafting conventions

Chapter 3 Contract drafting techniques

3.1 Introduction

3.1.1 Legal interpretation

3.1.2 Intelligibility

3.2 The topics this chapter covers

3.3 Stating obligations clearly-who, what, when (and how)

3.4 Active and passive

3.5 Indicative and subjunctive

3.6 Avoiding jargon and archaic language

3.6.1 Old fashioned words and jargon

3.6.2 'Acceptable' legal jargon

3.6.3 Using pairs of words when one will do

3.6.4 Use of Latin

3.6.5 Other jargon

3.7 Simplest forms

3.8 Plain, intelligible style (particularly for consumer contracts)

3.9 Definitions and consistent use of words

3.9.1 Means

3.9.2 Includes

3.9.3 Excludes

3.10 Avoiding unnecessary words

3.11 The use of pronouns (in non-consumer contracts).

3.12 Numbers

3.13 Formulas and the like

3.13.1 Formulas expressed mathematically

3.13.2 Formulas expressed in words

3.13.3 Formulas-suggestions

3.14 Sentence structure and length

3.15 Word order and use of punctuation

3.16 Conciseness and comprehensiveness

3.17 Length of individual clauses

3.18 Layout, use of paragraphs and tabulation

3.19 Size of typeface, justification, line length, and use of white space

3.20 Use of headings

3.21 Logical sequence of clauses

3.22 Grouping of clauses

3.23 Use of schedules

3.24 The question of gender

Chapter 4 Advanced drafting techniques

4.1 Introduction

4.2 The role of the contract drafter

4.2.1 First role: contract drafting

4.2.2 Second role: helping the client achieve their commercial objectives

4.3 Using negotiating and drafting policies

4.3.1 Areas that a policy should cover

4.3.2 An example

4.3.3 Commercial advantages of having a policy

4.4 Agreements with a large number of parties

4.5 International negotiations

4.6 The law in drafting and negotiating agreements

4.6.1 Knowledge of contract law

4.6.2 Other laws

4.6.3 Policies, checklists and workflows

Chapter 5 Basic commercial/legal issues affecting contract drafting

5.1 Introduction

5.2 Who should the parties be?

5.2.1 Related material

5.3 Commencement, duration, extension of term

5.3.1 Related material

5.4 Main commercial obligations

5.4.1 Related material

5.5 'Best endeavours', 'reasonable endeavours', 'all reasonable endeavours' (and absolute obligations)

5.5.1 Measuring the effort needed

5.5.2 Use of the 'best endeavours' obligation

5.5.3 All reasonable endeavours

5.5.4 How to deal with best and reasonable endeavours provisions?

5.5.5 Related materials

5.6 Payment provisions

5.6.1 Related materials

5.7 Warranties.

5.7.1 Related material

5.8 Liability and indemnities

5.8.1 Related material

5.9 Confidentiality and announcements

5.9.1 Keeping the information that the parties wish to disclose to each other confidential

5.9.2 Keeping the agreement confidential

5.9.3 Announcements

5.9.4 Related material

5.10 Termination and consequences of termination

5.10.1 Terminating the agreement

5.10.2 Specifying the length of the agreement and termination

5.10.3 Termination for breach

5.10.4 Termination for insolvency or bankruptcy

5.10.5 Specifying the content of a notice for termination

5.10.6 What is to happen on termination of an agreement

5.10.7 Related material

5.11 Boilerplate clauses

5.11.1 Notices

5.11.2 Force majeure

5.11.3 Entire agreement

5.11.4 Assignment of rights, transferring obligations and delegation

5.11.5 Contracts (Rights of Third Parties) Act 1999

5.12 Law and jurisdiction

5.12.1 Related material

5.13 Who signs the contract-are they authorised to do so?

5.13.1 Related material

Chapter 6 Interpretation of contracts by the courts-implications for the drafter/negotiator

6.1 Introduction

6.2 Establishing the terms of the contract and their meaning

6.3 Interpreting a given set of contract terms

6.4 General approach of the courts to interpreting contracts

6.4.1 How a court should interpret a contractual provision?

6.4.2 Intentions of the parties

6.4.3 Relevance of past court decisions

6.5 Which terms comprise the contract

6.5.1 The terms set out in the contractual documents

6.5.2 Pre-contract negotiations, drafts of an agreement and deleted provisions

6.5.3 Amendments to standard form agreements in common use

6.5.4 Post-execution deletions or amendments

6.5.5 The parol evidence rule, collateral contracts and misrepresentations.

6.5.6 The meaning of words used in contract terms

6.5.7 Ordinary, dictionary meaning of words

6.5.8 Commercial contracts

6.5.9 Legal terms of art and lawyers' jargon

6.5.10 Scientific and technical terms

6.5.11 Special meanings 'in the industry'

6.5.12 Special meanings given by the parties and defined terms

6.5.13 Interpreting express contract terms

6.5.14 Documents should be read as whole and all parts of the document should be effective

6.5.15 Give effect to all parts of the document

6.5.16 Special conditions override standard conditions

6.5.17 Hierarchy of clauses

6.5.18 The ejusdem generis ('of the same kind') rule

6.5.19 Unclear contract wording will be construed against the interests of the grantor or the party which benefits from the wording ('contra proferentem')

6.5.20 The court is unlikely to interpret the contract so as to allow a party to take advantage of his own wrongdoing unless clear wording is used

6.5.21 Implied terms

6.5.22 Terms implied by statute

6.5.23 Special rules for exemption clauses

6.6 The five principles from Investors' Compensation Scheme v West Bromwich Building Society

Chapter 7 Drafting consumer contracts

7.1 Introduction and key developments

7.1.1 The purpose of this chapter

7.2 The unfair term provisions: an introduction

7.2.1 Checklist: when the unfair term provisions do not apply

7.2.2 Checklist: basic factors to consider when preparing terms and conditions

7.3 Checklist of other legislation relevant to drafting consumer contracts

7.3.1 Contracts

7.3.2 Notices

7.3.3 Other

7.4 General points about the applicability of the unfair term provisions

7.4.1 Who is a trader?

7.4.2 Who is a consumer?

7.4.3 Does the CRA only apply to where a trader provides goods, digital content or services to a consumer?.

7.4.4 Who has the burden of proving a person is not a consumer.

Notes:

Includes bibliographical references and index.

ISBN:

9781526517272

1526517272

9781526517258

1526517256

OCLC:

1369660457