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Rock Advertising Ltd v MWB Business Exchange Centres Ltd: Difference between revisions
Rock Advertising Ltd v MWB Business Exchange Centres Ltd (view source)
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{{cn}}'''Headnote''': “[[Unless otherwise agreed in writing|Unless otherwise agreed ''in writing'']]” is not as meaningless as “[[unless otherwise agreed]]”. | |||
{{cite|Rock Advertising Ltd|MWB Business Exchange Centres Ltd|2018|UKSC|24}} ([https://www.supremecourt.uk/cases/uksc-2016-0152.html transcript]) | |||
In which the Supreme Court dealt unsatisfactorily with two basic issues one would like to think were well and truly settled law before now, getting one wrong (in your humble correspondent’s unworthy opinion) and deciding therefore that it did not need to answer the other. The issues were: | |||
#Whether a contractual term that an agreement may only be amended in writing signed by the parties prevents parties effectively amending the contract orally, by morse code or by winking at each other<ref>Neither Morse code nor winking are strictly part of the ''[[ratio decidendi]]'' but I maintain they are implied.</ref>; | |||
#Whether an amendment to substitute an obligation to pay a ''lot'' of money with an obligation to pay ''less'' money is supported by [[consideration]]. | |||
===[[No oral modification]] clauses=== | |||
Brand new nonsense from the learned souls in the Supreme Court. [[NOM]], [[NOM]], [[NOM]]. | |||
This time, concerning [[no oral modification]] clauses — hitherto understood by all to be harmless fluff injected into the boilerplate by [[Mediocre lawyer|unthinking clerks]], and understood by all (including the Court of Appeal) to carry no forensic content at all, wherein parties — and let’s be honest here, it’s really just their lawyers — vainly purport to require amendments to be documented in a written agreement. For who else would benefit from such a tiresome formal stricture? | |||
Anyway, the Supreme Court went into Law Society shop steward mode: | |||
{{rock advertising}} | {{rock advertising}} | ||
===[[Consideration]] for [[amendment|amendments]]=== | |||
Lord Sumption ducked this one, by giving a bad decision on [[NOM]]s. | |||
:“That makes it unnecessary to deal with consideration. It is also, I think, undesirable to do so.The issue is a difficult one. The only consideration which MWB can be said to have been given for accepting a less advantageous schedule of payments was: (i) the prospect that the payments were more likely to be made if they were loaded onto the back end of the contract term, and (ii) the fact that MWB would be less likely to have the premises left vacant on its hands while it sought a new licensee. These were both expectations of practical value, but neither was a contractual entitlement.” | |||
===The [[JC]] says=== | |||
The real problem here is that a counterparty was trying to reduce its contractual obligations for free. To be sure the consequences for the other party of not doing so may have been catastrophic, rock advertising may have failed all together) but however you look at it avoiding that outcome — which, absent this amendment, would amount to a [[breach of contract]], remember — by foregoing performance to which you are contractually entitled — is not consideration. It ''can’t'' be. The issue that isn’t “difficult”, but in getting it, the supreme court has wound up making a hash out of of an even more profound contractual concept. | |||
{{sa}} | |||
*[https://www.supremecourt.uk/cases/uksc-2016-0152.html Official judgment] | |||
*{{Casenote|Greenclose|National Westminster Bank plc}} for similar curial nonsense. | |||
{{ref}} | {{ref}} | ||