Understanding Key Clauses in Commercial Contracts: A Legal Perspective (Full Transcript)

Speaker 1: So we're gonna look at seven different types of clause that you may come across in a commercial contract. So I'm gonna look at some recent case law and some guidance with regards to what you should be looking out for, how you should be drafting in a way that's more or less, or indeed more effective, of course. So we'll start with exclusion limitation clauses. We will look at issues around reasonableness and we will also look at issues around interpretation and see what the current approach of the courts is with regard to how they will look at these sorts of clauses and the sorts of things that you need to bear in mind when you're drafting them to make sure that they are indeed enforceable. We'll then move on to good faith clauses. And in particular, we'll look at a variety of things. We'll look at the meaning of good faith and we'll also look at express duties of good faith in a contract, how they should be framed, how they will be interpreted by the court. Will it be broadly or narrowly? And we'll also look at at least one recent case with regard to that. Subsequently, we'll move on to endeavors. And I'm sure many of you will have seen references to best endeavors, reasonable endeavors, all reasonable endeavors, and so on. We will see we have two cases to look at. One that talks about the current or the most up-to-date understanding of all reasonable endeavors and how that compares to other types of endeavor standards. We also have a case that looks at the meaning of the phrase best efforts. So in an English and Welsh contract, we typically tend to use endeavors, but certainly the Americans and indeed others internationally like to use the word efforts. Will it be interpreted in a similar way or a different way? Well, we'll come on to that issue a little bit later. We'll talk about notices, which I have to say is something that is often overlooked when we're drafting or even when we're looking to comply with a notice provision. As we'll see later on, the reality is that you must comply strictly with the contents of any notice provision. And we will look at some of the key considerations in terms of how they should be drafted, things to watch out for, and potential pitfalls that can arise if you're not careful. Fifth one will be variation clauses. So we will look at the fact that typically variation clauses require variation to be in writing and signed, but we'll look at whether there's any possibility of an oral variation being valid in that context. But ultimately, we'll look at entire agreement clauses. And I'm sure many of you will know that entire agreement clauses actually have several aspects to them. And in particular, we're going to look at what the courts have been saying with regard to the exclusion of pre-contractual representations or the lack of reliance upon pre-contractual representations, what wording we need to use, how specific that needs to be. And finally, we will look briefly at jurisdiction and applicable law. And essentially, we will see the sorts of things that ought to be said, and also look at what potentially can happen very briefly if you don't put that sort of wording in.