Contracts made in writing are important

Often, it is after the event, and when a problem occurs, that parties will go back and review a contract.

For an aggrieved party, the contract may limit or exclude liability (from their point of view) unreasonably.  In other cases, there may significant issues where the incorrect party has been identified in the contract, to the one intended.

In these type of cases how easy is to change or amend the contract?

Exclusion clauses and limitation of liability

These are included to exclude liability for losses, such as loss of profits, loss of business, depletion of good will, other economic loss.  Exclusion clauses must be drafted clearly and unequivocally.  Any ambiguity will be construed against a party seeking to rely on the clause.  Also, it is important to note that where the two parties to an agreement are businesses, and have the ability to negotiate terms of an agreement in advance, it is less likely that a party will be able to argue a term is unreasonable.

Errors in your contract

Establishing the identity of a party to a contract is essential.  Getting it wrong could lead to uncertainty which means there could simply be no contract.  Where there is a clear mistake and it is clear what the correction needs to be made then a party can ask the court to substitute a correct term for an incorrect one.

Where this remedy is not available to a party (for example, it may not be a clear mistake even taking background facts into account) the courts are able to “rectify” a document.  However, this will require a great deal of proof to be able to do so.

Conclusion

It is extremely important to make sure that when you either draft a contract or sign one, that you have taken proper advice in doing so.  Not taking professional advice early could be extremely expensive later on.

If you would like to know more about the commercial contracts we can help you with, or need assistance in a contract dispute, please contact Bhavini Kalaria at The London Law Practice on 0208 369 5121 or by email to info@londonlawpractice.com

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