The long series of cases relating to entire contractual clauses shows that full agreement clauses: the Court of Justice`s analysis of the application of Section 3 and the fact that the waiver of contract law is not an answer to the question of whether it applies is of particular interest. As the Court of Justice has acknowledged, the fact that the clause gave rise to a breach of contract law would prevent the application of Section 3 would mean that, subject to other applicable laws, the contracting parties could, with impunity, make such non-fraudulent false statements. Those who drafted the misrepresentation law did not intend for the contracting parties to circumvent section 3 with such clever wording. Adding its comments to those of Lewison LJ, leggatt LJ was prepared to go further and state: “I would say that if one party invokes the principle of breach of contract law to argue that a contractual term prevents the other party from asserting a fact necessary to establish liability for pre-contractual misrepresentation, this term is covered by section 3 of the Misrepresentation Act 1967. Such a period is therefore effective, unless it satisfies the adequacy requirement referred to in Article 11 of the UCTA. Therefore, the contracting parties must be aware that it will only be applied in the drafting of a clause that would lead to contractual effect if it satisfies ucta`s adequacy assessment. However, as confirmed by the Supreme Court in Wood vs. Capita (see our briefing), contractual provisions cannot be interpreted in isolation. The Tribunal will consider the clause as a whole within the framework of the agreement. Boilerplate clauses are no exception to this rule. However, the exclusion of a particular implied clause depends not only on the wording of the entire contractual term, but also on the nature of the implied clause and, in particular, whether it is considered “intrinsic” or “extrinsian” to the written agreement.
In this article, we give a brief overview of the interaction between all contractual terms and implied terms in English law, with reference to the recent case of J N Hipwell & Son against Szurek (Hipwell)1, in which a plaintiff attempted to convince the court that a clause should be included in a commercial contract with a full contract. Finally, we highlight some practical points that arise from the law in these areas and that may be relevant for energy and raw materials companies. If, for any reason, the prior agreement is not explicitly included, this prior agreement may, in certain circumstances, give rise to a legally binding obligation, notwithstanding the fact that the contract contains a full contractual clause. This is due to the doctrine of breach of law by agreement, which was recently investigated regarding entire contractual terms in Mears Ltd against Shoreline Housing Partnership Ltd3. .