Online Course | Anatomy of an English-law Contract

Course dates

This course runs as a series of eight one-hour, lunchtime sessions (13:00 - 14:00) over 2 weeks on the following dates:

• Week 1: Monday/ Tuesday & Thursday / Friday  25-26 & 28-29 November 2024
• Week 2: Monday to Thursday 2 - 5 December 2024

Introduction

As lawyers and commercial managers, we are creatures of habit. When we draft commercial contracts, we use familiar templates and clauses. The wording of contracts evolves slowly, but many of the themes and contract structures would be familiar to practitioners from previous centuries.

This practical course considers some important areas of English law and legal practice that influence the drafting of commercial contracts. As modern contract drafters, we should know when a particular feature of a contract is legally significant (and omitting it, or wording it badly, may present a risk), or just a tradition or bad habit that can be ignored or avoided. In some cases, the wording may reflect the legal framework or drafting habits of another jurisdiction, particularly where US templates are used; this may create problems of interpretation if the contract is made under English law.

In a series of eight one-hour, lunchtime sessions (13:00 - 14:00), we will go methodically through the main parts of a conventional contract and examine the usefulness or otherwise of its features. The main focus of the talks will be on English law, but the discussion will include reference to practice in other jurisdictions, both common law and civil law.

To take a few examples:

• Identifying the parties accurately, including the dangers of including Affiliates.
• The consequences of badly-drafted recitals.
• Best practice in drafting definitions.
• Unnecessary interpretation clauses.
• Implied terms; legal jargon, including time is of the essence, best endeavours
• Warranties of authority and capacity – are they a waste of time?
• Excluding liability for indirect loss – does this make commercial sense?
• Indemnities – the different types – why do you need them?
• Boilerplate clauses – which ones are critical?
• Signature blocks – who, what, where?

Who is the course designed for?

The course is suitable for lawyers and contract managers who care about the technical content of their contracts, how that content might be interpreted by an English court, and achieving legal certainty. In other words, the course is at the interface between legal theory and practical drafting. You will probably have some experience of drafting and negotiating contracts.

NOTE: This course is not about negotiating issues, or what deal terms you should include in your contract.

Course Schedule

Monday 25 November: Session 1 – Preliminaries: dating, parties, recitals

• Choice of agreement format: traditional, form or letter?
• Dating the agreement; avoiding criminal forgery; setting up an effective date
• Identifying the correct parties and giving their full name – company search?
• Adding Affiliates as parties
• Do you need a parent company guarantee?
• Executing your contract as a deed – wording issues
• Addresses – here or in the notices clause?
• Short-form names; practical tips
• Best practice with recitals; avoiding substantive terms or representations; comparison with civil law

Tuesday 26 November: Session 2 – Definitions and interpretation

• Best practice in drafting definitions, including choice of term, location, order, appearance, consistent use of capitalised words
• Different types of definition: means, includes, excludes; cascading and buried definitions
• Redundant definitions; unused definitions
• Interpretation clauses – why are they used?
• Underlying law on interpretation clauses
• Some useful and less useful interpretation clauses; location

Thursday 28 November: Session 3 – Implied terms, use of legal jargon: practical issues

• Some common implied terms, including quality, fitness for purpose, reasonable care and skill, full title guarantee, good faith; underlying law
• Other implied terms, e.g. VAT is included, time obligations, rights to terminate, rights to interest
• Use of legal jargon, e.g. best endeavours, time is of the essence, condition

Friday 29 November: Session 4 – Warranties and disclaimers

• Warranties v representations
• “Standard” warranties of capacity, authority
• Absolute and knowledge-based warranties
• Some case law on warranties
• Disclaimers of warranty

Monday 2 December: Session 5 – Liability and indemnities

• Liquidated or unliquidated damages
• Capping liability – case law, statutory constraints
• Exclusion of indirect losses – practical issues
• Carving out impermissible exclusions: traditional and modern approaches of the courts
• Types of indemnity: indemnities against breach; indemnities against risks; third party or inter-party indemnities; mutual indemnities

Tuesday 3 December: Session 6 – Termination clauses

• Implied rights to terminate
• Termination for breach
• Leaving it too late to terminate for breach
• Termination for insolvency, including recent law
• Right of termination cumulative not exclusive
• Giving notice of termination – calculation of time periods
• Spelling out the consequences of termination

Wednesday 4 December: Session 7 – Boilerplate clauses

• Choice of law and jurisdiction
• Entire agreement
• Assignment and change of control
• Third-party rights; avoiding third-party obligations

Thursday 5 December: Session 8 – Signing issues

• Execution as a deed or simple agreement: reasons, methods, formalities, special cases
• Is the signatory actually authorised to sign? Representation of authority? Consequences if unauthorised person signs
• Verifying due execution: Board minutes, letters from Co Sec, website searches, etc; who is responsible for this?
• Does the signatory have apparent authority to sign? Understanding agency law in this area
• Using a modern signature block
• Signatures before or after schedules?
• Practical issues, including signing the wrong signature block

About the tutor

Mark Anderson is a solicitor and former barrister, who qualified in the 1980s. After spells as an in-house lawyer and with a leading IP law firm, he formed his own firm in 1994. Anderson Law LLP now employs 17 people and is recognised by Chambers Directory as a national leader in IP transactions and life sciences law.

Mark has written several textbooks for practitioners, some now in their 4th editions, including Drafting and Negotiating Commercial Contracts, and A-Z Guide to Boilerplate and Commercial Clauses. He is a visiting professor at the Institute of Brand and Innovation Law at UCL, and is the convenor of an annual, one-week course for IP practitioners, called IP Transactions: Law and Practice. That course has won both a UCL Provost’s Teaching Award, and a Law Society Excellence Award (Highly Commended). His firm has written published templates agreements for LexisNexis, Oxford University Press, and Enterprise Ireland (an Irish government agency).

He runs other CPD courses at UCL, including Drafting Legal Clauses in Commercial Contracts, and Advanced Contract Drafting Workshop.

Delivery and recordings

This course will be held using Zoom. You will be sent the zoom meeting details 48 hours before the start of each session, with reminders on the day of the session.

Each session will be recorded so that if you miss a session you will have 7 days to catch up.

Fees and booking

Early Bird Standard fee  =  £650.00   (until 30 June)
Standard fee  =  £720.00   
UCL Alumni / IBIL Sponsor firm Ticket = £620
Academic Fee (full time) / NHS / NGOs = £600
Group Ticket (3 or more)  =  £640.00
 

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