Drafting Commercial Contracts in 2024 - An Advanced Guide with Richard Stephens

Introduction

This course examines the challenges and pitfalls of drafting a modern commercial contract and focuses on the impact of recent case-law. Their Lords and Ladyships continue to turn out pivotal cases that should change the way you draft commercial contracts and how you should be advising your clients.

This course is practical and recent developments will be considered and how they impact the contracts we draft. The day is interspersed with practice points giving tips on drafting and highlighting real risk areas for the practitioner. Examples are given where things can go badly wrong - a time-limit missed, the wrong termination notice served, an inappropriate template liability clause utilised … the list goes on and on.

This course is suitable for commercial lawyers or litigators of at least intermediate levels - really including any lawyer that gets involved in commercial contracts governed by English Contract Law (whether practising in England or not).

What You Will Learn

This course will cover the following:

• Getting into a contract accidentally
• How you can preserve your client’s position - the status of MOU’s, Heads and similar documents
• The constant risk of oral agreements, and how to avoid them
• The battle of the forms
• How it applies to framework agreements
• Incorporation of terms in the internet age
• Working ‘at risk’ - understanding quantum meruit
• Limitations of a claim in quantum meruit - and why it is usually better to have a contract in place
• Drafting obligations - do you want to set up a condition precedent or are you setting out administrative provisions for guidance?
• Why it matters and why you re-organise your materials
• Endeavours clauses
• Reasonable vs. all reasonable vs. best vs. other formulas
• When is it right to use one or other formula?
• Good faith
• How it has emerged and the status of ‘good faith’ these days
• When to use a ‘good faith’ obligation
• Liabilities
• When does/might the Unfair Contract Terms Act apply?
• What is considered ‘reasonable’ under UCTA these days?
• Indirect or consequential loss - the emerging landscape
• Loss of profits/anticipated profits
• What they might be and what they are not
• Exclusive remedies
• Liquidated damages - does the concept of a ‘penalty’ still exist? Do’s and don’ts of drafting
• Dealing with deliberate (even dishonest) breaches - what is the law’s modern approach?
• Indemnities
• What is within scope and what lies outside?
• Remoteness and causation in the context of indemnities
• Indemnities vs. other types of clause (guarantees, demands, etc)
• Notices
• The most difficult drafting you will ever do … the many pitfalls of serving a notice
• Sting in the tail - adding a time-limit
• Force majeure
• Different types - choosing the right type for your client
• Dispute escalation and resolution clauses
• Not all plain sailing - getting the details right
• Termination
• Different types of termination - what makes a breach ‘material’? What if it is repeated - a ‘persistent’ breach? What if it is ‘wilful’ or ‘deliberate’?
• Getting your termination done correctly (and what happens if you don’t)