Part of the ANU College of Law Research Seminar Series 2020 series
A major disagreement has recently emerged concerning the most common boilerplate provision in commercial contracts. According to the Supreme Court of the United Kingdom in MWB Business Exchange Centres Ltd v Rock Advertising Ltd, compliance with a clause that requires writing forvariation of the contract is mandatory. A non-compliant agreement is ineffective. This is a departure from the conventional view that the parties may vary the contract without complying with the clause.
In this seminar it will be contended that clauses which regulate the form of contracts by way of ‘variation’ state agreed rules, rather than mandatory rules, and that matters such as the scope and operation of such clauses are issues of intention which must be resolved by construction. The seminar will be based on a recently-published paper which was authored jointly with Professor John Carter and Professor Elisabeth Peden.