Prior consent: Difference between revisions
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{{a|drafting|}}{{quote| | |||
“... and will not without the [[prior written consent]] of the Provider (which consent may be withheld, in the Provider’s discretion) ...”}} | |||
We take it as settled that the point of interposing a consent requirement on the exercise of this or that right under a contract, is grant an option to the Provider. In which case it need hardly be said that consent may be withheld. If it could not, what would be the point of providing it, other than to delay an otherwise unobjectionable process? | |||
To provide notice, you might argue, and sure — but in that case the mechanism you want is notice, not consent. | |||
===“...such consent not to be unreasonably withheld ...”=== | |||
You may wish to mediate the circumstances in which one can withhold consent, and this bromide is the legal eagle’s favourite tool for doing so, skirting so close to a split infinitive as it does (is it just to be, in which case you’re okay, or it it a passive infinitive to be withheld, in which case you’re not?) | |||
When can one withhold one’s consent? When your watchword is “[[noli mentula esse]]”. | |||
That’s when. As was illustrated in the recent case of {{casenote|Crowther|Arbuthnot Latham & Co Ltd}}. | |||
If the purpose of a covenant is for a party to achieve a certain purpose, or prevent a certain outcome, then if you use the covenant to achieve some other purpose, you’re likely to get yourself in trouble. | |||
{{sa}} | |||
*[[Don’t take a piece of paper to a knife fight]] | |||
*[[Noli mentula esse]] | |||
*{{casenote|Barclays|Unicredit}} | |||
*{{casenote|Crowther|Arbuthnot Latham & Co Ltd}} [2018] EWHC 504 (Comm) | |||
*{{casenote|AP Picture Houses|Wednesbury}} | |||
Revision as of 09:39, 17 January 2023
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The JC’s guide to writing nice.™
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“... and will not without the prior written consent of the Provider (which consent may be withheld, in the Provider’s discretion) ...”
We take it as settled that the point of interposing a consent requirement on the exercise of this or that right under a contract, is grant an option to the Provider. In which case it need hardly be said that consent may be withheld. If it could not, what would be the point of providing it, other than to delay an otherwise unobjectionable process?
To provide notice, you might argue, and sure — but in that case the mechanism you want is notice, not consent.
“...such consent not to be unreasonably withheld ...”
You may wish to mediate the circumstances in which one can withhold consent, and this bromide is the legal eagle’s favourite tool for doing so, skirting so close to a split infinitive as it does (is it just to be, in which case you’re okay, or it it a passive infinitive to be withheld, in which case you’re not?)
When can one withhold one’s consent? When your watchword is “noli mentula esse”.
That’s when. As was illustrated in the recent case of Crowther v Arbuthnot Latham & Co Ltd.
If the purpose of a covenant is for a party to achieve a certain purpose, or prevent a certain outcome, then if you use the covenant to achieve some other purpose, you’re likely to get yourself in trouble.