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Unsigned contracts can still be binding.

31st October 2016 by Rob Kelly

Categories: What's New?
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It is a common misconception that contracts must be in writing, and a less common misconception that written contracts become effective only when signatures are applied.  In Reveille Independent LLC v Anotech International (UK) Limited [2016] EWCA Civ 443 the Court of Appeal upheld a decision of the Commercial Court which found that a party had accepted the terms of an agreement by its conduct, even though it had not signed the agreement and the agreement purported to require the signatures of both parties to take effect.

The case involved a cookware company and the producers of a popular television cooking show.  The company negotiated a deal with the producers by which it would be licensed to exhibit the show’s logo on its products, which would also be featured and promoted during three televised episodes of the show.  Long form contracts were never drawn up, but the principle features of the agreement appeared in a memo.  The memo was signed by the company but not by the producers.

The producers commenced proceedings to enforce the contract but were met by the company’s arguments that no binding agreement had been reached.  The memo had stated in terms that the producers would not be bound informally and that the contract would only become enforceable on being signed.  The producers’ arguments nevertheless prevailed before the Commercial Court, which found that a valid contract had been completed.

In dismissing the company’s appeal, the Court of Appeal found that the producers had, by their conduct, waived the provision that there would be no binding contract in the absence of their signature on the memo.  That conduct consisted of the producers having in fact performed their obligations in the manner contemplated by the terms of the agreement.

Comment: The decision is a useful reminder that a failure to comply with formal requirements specified in a draft contract does not necessarily mean that no binding agreement has been formed.  There are occasions when the conduct of the parties is sufficiently clear and unequivocal that a court may be willing to find that an agreement has been accepted by conduct.

If you would like further information please contact Rob Kelly

This article provides information and comments on legal issues and developments of interest.  The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such.  Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 377871

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Rob Kelly
  • “Rob Kelly has been absolutely exceptional in resolving this litigation and so thorough in everything and basically gave the opposition a masterclass of his work that he is so good at.”

    Paul Jeffcoate - Contentious Probate Client

  • “I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”

    Dan Collins

  • “ I just wanted to thank you for your great work on the professional negligence case and other cases you have represented Indian Ocean and Tiien through the last few years.”

    Mehdi Vahdati, Director and Proprietor - Indian Ocean (Bournemouth) Limited

  • “A case that was initially very straightforward became difficult and, for me, very frustrating. Rob Kelly's calm, lucid and very professional advice and planning were invaluable and led to a good outcome.”

    Don Young

  • “Their Fee Management was exemplary and the expertise provided by Rob was exactly what we required.”

    Sunseeker London Limited

  • “I've worked with a fair few lawyers over the years and Rob Kelly is the most on the ball and efficient lawyers I've ever come across. I'm looking forward to working together for many years to come.”

    Roger Woodall CEO - Diamond Sporting Group

Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.

Contentious wills, probate and trusts

More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years.  He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.

Rob’s practice embraces:

  • Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
  • Disappointed beneficiary claims
  • Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
  • Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
  • Proprietary estoppel claims
  • Disputes about the proper construction, and rectification, of wills
  • Caveats
  • Professional liability claims arising from the preparation of wills and trusts and the administration of estates

He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.

Property disputes

The other side of Rob’s practice is contentious property work.  This embraces:

  • Residential and commercial landlord and tenant disputes
  • Disrepairs
  • Repairing covenants
  • Possession claims
  • Lease termination and lease forfeiture
  • Dilapidations
  • Service charge disputes
  • Interpretation and enforcement of leasehold covenants

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

Rob is an Associate Member of the Chartered Institute of Legal Executives.  He holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006, was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice, and is a member of the Civil Mediation Council.

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