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Drafting a building contract/schedule of amendments—checklist

Drafting a building contract/schedule of amendments—checklist Once the procurement route and form of building contract has been selected (see Practice Note: Choosing the right procurement method—construction projects) the employer should consider the following matters and incorporate the appropriate drafting in the building contract particulars and schedule of amendments. This Checklist assumes that the parties are using a standard form of building contract, such as a JCT form, and that the employer is proposing the first draft including the completed contract particulars and a schedule of amendments, which amends the standard terms. This list is not exhaustive, however, and there may be other project specific matters/risks that need to be taken into account: Contractual matters • Carry out due diligence on the contractor The employer needs to carry out due diligence on the contractor at the outset to determine whether its financial position is acceptable. Confirm the contractor’s company number and name at Companies House. • Obtain consultants’ details Confirm the full details of the consultants engaged by the employer; some...

Seller's SPA drafting guide (unconditional completion)—checklist

Seller's SPA drafting guide (unconditional completion)—checklist This Checklist serves as a guide of certain key matters for the seller’s solicitors to consider when drafting, or commenting on, a share purchase agreement (also known as SPA or share sale agreement) recording the sale and purchase of the entire issued share capital of a private limited company, where the transaction involves simultaneous exchange and completion. Parties The drafter should: • check to see if the legal and beneficial title to the sale shares is split, ie check to see if the seller's sale shares are held in the name of a nominee, requiring the beneficial owner to: ◦ be named as the seller in the SPA instead of the registered holder, and ◦ procure the sale of the sale shares to the buyer • check to see if the transaction involves any parties connected with company directors, which may constitute substantial property transactions requiring certain approvals (see Practice Note: Substantial property transactions—requirement to obtain members’ approval) • resist proposals to include in...

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Step-in clauses—flowchart

Step-in clauses—flowchart This flowchart is an example of the step-in rights process that may be contained in a collateral warranty. The terms of any step-in rights contained in

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Structure and form of commercial contracts

This Practice Note describes the structure and form of a business to business commercial contract or agreement. It outlines the form which commercial agreements generally take and explains what information should be included in the contract document, including in the parties, background (or recitals), main body, schedules and attestation sections.Form of commercial contractsHow a contract is formedA contract is a legally binding agreement that grants rights and creates duties between two or more parties. Contract law principles provide that for a contract to exist, four key elements must be present:•offer (see Practice Note: Forming enforceable contracts—offer)•acceptance (see Practice Note: Forming enforceable contracts—acceptance)•consideration (see Practice Note: Forming enforceable contracts—consideration), and•an intention to create legal relations (see Practice Note: Forming enforceable contracts—intention to create legal relations)Simple contracts v deedsSimple contracts may be created orally, by conduct or in writing.Certain types of simple contracts however must be created in writing. For details, see Practice Note: Contracts required to be in writing.Some agreements require greater formality and must be executed by deed. A deed...

Implied terms in contracts for goods and services

Express and implied contractual terms distinguishedContractual terms may be either express or implied:•express terms—are terms which are actually recorded in a written contract or openly expressed in an oral contract at the time the contract is made (or there may be a combination of written and oral express terms)•implied terms—are not stated in the contract but arise 'by implication' to reflect the intention of the parties at the time the contract was made. Terms may be implied by fact, law or custom. For guidance on implying terms into contracts, see Practice Notes:◦Contract interpretation—terms implied by law◦Contract interpretation—terms implied by fact◦Contract interpretation—terms implied by custom and usageThis Practice Note considers statutory implied terms in contracts for the supply of goods and services, being the terms incorporated by the Sale of Goods Act 1979 (SGA 1979) and the Supply of Goods and Services Act 1982 (SGSA 1982). It considers what the implied conditions and the implied warranties under SGA 1979 and SGSA 1982 are and whether it is possible to exclude or...

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Copyright licence clause (collateral warranty)

Copyright licence 1 The copyri

Further warranties clause

Further warranties

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A consumer purchases a laptop from a retailer with a twelve-month manufacturer's warranty. When does a retailer have to offer a repair or replacement and must they do so even if the costs are prohibitive?

A consumer purchases a laptop from a retailer with a twelve-month manufacturer's warranty. When does a retailer have to offer a repair or replacement and must they do so even if the costs are prohibitive? The rights under a manufacturer’s guarantee are separate to and in addition to the rights in the Consumer Rights Act 2015 (CRA 2015). A consumer does not have to avail themselves of the remedies under a manufacturer’s guarantee and if it has expired, they still have their rights against the retailer under CRA 2015. For guidance on this issue, see section Guarantees and extended warranty insurance in Practice Note: Consumer Rights Act 2015—summary—Goods. Under CRA 2015, s 23, if the customer no longer has the right to reject the goods because the 30-day period has expired, they can ask the trader to repair or replace the goods. If the consumer asks the trader to repair or replace the goods, the trader must do so within a reasonable time and without significant...

If a contractor is insolvent, can its sub-contractor claim outstanding payments directly from the employer?

If a contractor is insolvent, can its sub-contractor claim outstanding payments directly from the employer? If the main contractor becomes insolvent, its sub-contractor will want to know if it can obtain payment from any other source, in particular from the employer. The sub-contractor's first step should always be to check whether the terms of its sub-contract provide any assistance in such a situation. In doing so, the sub-contractor should also check the terms of the main contract if, as is often the case, it has been incorporated into the sub-contract. If a copy of the main contract was not physically attached to the sub-contract at the time of execution, the terms of the sub-contract may entitle the sub-contractor to ask for a copy from the main contractor. This Q&A looks at the possible routes by which the sub-contractor may be able to obtain payment in these circumstances. Collateral warranty If the sub-contractor has provided a collateral warranty to the employer, it may contain 'step-in' rights which allow the...

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Third party rights—welcome guidance from the high court

Construction analysis: There is a ‘a dearth of case law’on section 1(1) of the Contracts (Rights of Third Parties) Act 1999 (C(RTP)A 1999), as observed by Lenon KC, the judge in the case of HNW Lending Ltd v Lawrence. While an accurate assessment, the judge would have been well within his rights to add (but didn’t) that the dearth of caselaw extends to the entire Act, not just C(RTP)A 1999, s 1(1). This is surprising given the rising prevalence of reliance on C(RTP)A 1999 in commercial contracts (and perhaps most frequently, construction contracts) since its introduction in 1999. Written by Kevin Henderson, associate at BCLP.

Tax weekly highlights—22 May 2025

This week's edition of Tax weekly highlights includes: (1) the Court of Appeal decision in Impact Contracting Solutions, (2) regulations being made to increase penalties for late payment of tax, (3) an ex-solicitor being given the first individual tax avoidance stop notice, and (4) News Analysis articles being published about the decisions of the First-tier Tax Tribunal (FTT) in Industria Umbrella and Powell.