Change of position

The basic principles of contract →Go uptown Formation: capacity and authority · representation · misrepresentation · offer · acceptance · consideration · intention to create legal relations · agreement to agree · privity of contract oral vs written contract · principal · agent Interpretation and change: governing law · mistake · implied term · amendment · assignment · novation Performance: force majeure · promise · waiver · warranty · covenant · sovereign immunity · illegality · severability · good faith · commercially reasonable manner · commercial imperative · indemnity · guarantee Breach: breach · repudiation · causation · remoteness of damage · direct loss · consequential loss · foreseeability · damages · contractual negligence · process agent Remedies: damages · adequacy of damages ·equitable remedies · injunction · specific performance · limited recourse · rescission · estoppel · concurrent liability Not contracts: Restitution — quasi-contract — quasi-agency Index: Click ᐅ to expand: Contract Tort Restitution Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

A bogey-phrase you may encounter should you be in the habit of waiving contractual rights your negotiation team has, at your behest, spent months welding into the god-forsaken agreement.

The person who asks “why would anyone be in the habit of waiving their contractual rights?” obviously does not know many credit officers, and therefore may also be prone to asking sensible, but misguided, questions like “why would anyone insist on having contractual rights they have no practical ability to enforce or serious intention of using?”

For now, while you familiarise yourself with the arcane traditions of the Worshipful Guild of Credit Analysts, imagine that there are times that you might, say, waive a NAV trigger, and you must therefore be fearful of the ongoing consequences for your economic rights under you contract if you do. Could I lose my hard-earnewd rights? Could the very contract itself evaporate in a puff of smoke? There is more to say about this our waiver by estoppel article and, for you Americans, in our unlearned piece on course of dealing in the UCC, but for the time being we are concerned with the principles of equity administered by the Courts of chancery. They will say this:

If a fellow makes a statement pregnant with implication — for example, “I promise I will not exercise my rights against you, sir —” then, by itself (and without consideration) that statement will not change my contractual rights against you, unless you change your position in reliance upon my promise. If, relying on my promise, you then put the money you had set aside for me into (say) an illiquid investment, then you have changed your position in reliance on my representation. English principles of equity may apply to change my rights to claim that money from you, especially if I knew you intended to change your position if I waived the payment. If, on the other hand, you do nothing – you keep the money on call – then you have not changed your position. If I later ask you for payment, there is no equitable remedy¬equitable grounds for to justify you not paying. (though perhaps you may be entitled to a reasonable additional time to make the payment).

See also

• Promissory estoppel
• Waiver by estoppel
• Course of dealing