Microwaving Jesus’s Burrito: The Problem of No Oral Modification Clauses

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Anirudh Mandagere

April 2019

A paper based on the second prize winning entry in the Hudson essay competition 2018 which was presented to the Society of Construction Law at a meeting in London on 2nd April 2019

This paper analyses the context and likely impact of the Supreme Court’s judgment in Rock Advertising. After a brief history of how the English courts have approached formalities in contract law, the paper addresses how the Court of Appeal has analysed NOM clauses prior to the Supreme Court’s decision, and analyses the Supreme Court’s decision. The paper examines the use of NOM clauses in the construction industry, and the unresolved questions thrown up by the Supreme Court. Finally, the author draws all these strands together to examine the possible ways in which the courts will approach NOM clauses in the future.

Part I: The courts’ approach to formalities – Part II: The approach of the Court of Appeal to NOM clauses – Part III: The decision in Rock Advertising – Part IV: Assessing Rock Advertising – What is the true distinction between the leading and concurrent judgments – What is the role of estoppel? – What is the relationship between NOM clauses and unfair terms legislation? – How does a term of ‘good faith’ interact with NOM clauses? – Part V: Future approaches to NOM clauses – What did Lord Sumption mean when he stated that ‘something more’ was necessary for an estoppel to succeed? – How can parties contract against the possibility of an estoppel? – Can all estoppels be pleaded in defence? – What impact would the difference between Lord Sumption and Lords Briggs’ judgments have in practice? – What is the role of good faith? – When will a NOM clause by caught by Section 3(2)(b)(i), UCTA? – Conclusion

The author: Anirudh Mandagere is a legal assistant at Keating Chambers.

Text: 15 pages

Paper number: 
April 2019 printed and online, 1MB

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