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Intro To Commercial Contracts Notes

LPC Law Notes > International Commercial Law Notes

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A more recent version of these Intro To Commercial Contracts notes – written by Cambridge And Oxilp And College Of Law students – is available here.

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ICL Workshop 1


1. Upstream? those which provide the client with the resources needed in Contract types

order to carry on his business.

2. Downstream? contracts under which the client passes on and exploits the-

Standard terms and conditions

fruits of his labour, contracts for the supply of goods and services by the business. Use of standard terms ensures that the contract suits the needs of whichever party has been able to insist on their use. Buyer will want to ensure that: (i) The goods to be delivered are on time, preferably to own premises; and (ii) The seller to be liable for any defects. The seller will want to ensure that: (i) They have flexibility for late delivery if it is to be let down by its own suppliers; (ii) The buyer preferably collects the goods from its factory; and (iii) They are not liable for every trivial problem (will usually accept some liability for defects).

Advantages of standard terms
- Contract on favourable terms to client;
- Standardised procedures;
- Commercial certainty;
- Cheaper;
- Starting point for negotiation

Drafting and content of commercial contracts

Recitals Definitions clause

Disadvantages of standard terms
- Lack of flexibility;
- Effective training and procedures essential;
- Incorporation difficulties/ 'battle of the forms'.
- Need for regular review;
- Legal constraints (e.g UCTA 1977). Key factors in drafting commercial Basic checklist for commercial agreement agreement a) Analysis of client's instructions; a) Commencement and date; b) Establishing client's objectives; b) Parties to contract; c) Not losing sight of C's c) Recitals (if any); d) Definitions and interpretation; commercial aims; e) Conditions precedent (if any); d) Adapting precedents to fit C's f) Agreements; instructions (and not other way Operativ g) Representations/ warranties; around). e part Operative part h) Indemnities; i) Limitations and exclusions; j) 'boiler plate' clauses; k) Execution clause and signature; l) Schedules.
- Recitals can be useful to help put the contract in context or explain the reason the reason for a contract being entered into.
- Alternatively, may set out the factual background to an exclusion clause by explaining the decision of the parties to impose the risk of loss on one party rather than the other. Basic rules:

1. Should give no more than give a clear meaning to defined terms;

2. All defined terms should start with a capital letter;

3. Defined terms should be listed alphabetically for ease of reference;

4. Should be used only where they are recurrent in the body of the agreement

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