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Could it really work? Surely, contracting merchants are sovereign: they must be free to vary their affairs in a way the [[common law]]. If the evidence is clear that they agree, and there is consideration, it doesn't matter ''how'' they agree. Could contracting parties really double-entrench themselves? | Could it really work? Surely, contracting merchants are sovereign: they must be free to vary their affairs in a way the [[common law]]. If the evidence is clear that they agree, and there is consideration, it doesn't matter ''how'' they agree. Could contracting parties really double-entrench themselves? | ||
The Court of Appeal thought not. A fellow can agree whatever he chooses, however he chooses – in writing, orally or by conduct<ref>Or in pictures</ref>. Following that general principle, a “[[no oral modification]]” clause (a “[[NOM]]” clause) would not prevent him later making a new oral contract to vary the original contract. | The Court of Appeal thought not. A fellow can agree whatever he chooses, however he chooses – in writing, orally or by conduct<ref>Or in pictures.</ref>. Following that general principle, a “[[no oral modification]]” clause (a “[[NOM]]” clause) would not prevent him later making a new [[oral]] contract to vary the original contract. | ||
Good, that’s that all sorted and we can now all move on to more important issues of the d — | Good, that’s that all sorted and we can now all move on to more important issues of the d — | ||
BUT WAIT. The Supreme Court thought differently. Lord Sumption dismissed this “fallacious” reasoning: a chap’s autonomy operates until he has made his contract; thereafter only | BUT WAIT. The Supreme Court thought differently. Lord Sumption dismissed this as “fallacious” reasoning: a chap’s autonomy operates until he has made his contract; thereafter he only has it so far as the original contract allows. | ||
:“The real offence against party autonomy is the suggestion that they cannot bind themselves as to the form of any variation, even if that is what they have agreed.” | :“The real offence against party autonomy is the suggestion that they cannot bind themselves as to the form of any variation, even if that is what they have agreed.” | ||
But what if contracting parties have relied on an oral variation in good faith, | But what if contracting parties have relied on an [[oral]] [[variation]] [[in good faith]] and, by their conduct, abided by it for a good period? The sort of thing codified in America as a “[[course of dealing]]”? As have so many of his brother judges in the past, here Lord Sumption looked lovingly towards the [[courts of chancery]] in a clean-handed defendant’s aid. A wronged party might seek to argue an [[Courts of chancery|equitable]] [[estoppel]]. However, the scope of this [[estoppel]] will be limited: | ||
:“... at the very least, there would have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its informality and something more would be required for this purpose than the informal promise itself.” | :“... at the very least, there would have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its informality and something more would be required for this purpose than the informal promise itself.” | ||
Look on one bright side: this should — but won’t — finally nail down the lid on the coffin of nervous risk people regarding the ISDA — which has a [[Amendments - ISDA Provision|no oral modification]] clause — and wailing “but what if my failure to exercise my [[6 - ISDA Provision|close out rights]] means I lose them altogether?” This is a fatuous question (under [[English law]] at any rate) at the best of times, but as long as ''[[Rock Advertising Limited v MWB Business Exchange Centres Limited - Case Note|Rock Advertising]]'' is good authority — and being a judgment of the Supreme Court, we should expect it will be for some time — it has a definitive answer: you cannot amend, or waive your rights under an {{isdama}} except in writing, and [[Electronic execution|signed]] by all parties. | |||
Common sense has taken a bit of a battering, but this is all good news for we [[Mediocre lawyer|learned wordwrights]] who can now be prayed upon to paper otherwise unnecessary [[amendment agreement]]s for merchants to vouchsafe their obvious commercial intent. | Common sense has taken a bit of a battering, but this is all good news for we [[Mediocre lawyer|learned wordwrights]] who can now be prayed upon to paper otherwise unnecessary [[amendment agreement]]s for merchants to vouchsafe their obvious commercial intent. | ||