In previous articles in the Supply Chain Survival Series, we discussed how contracts are formed and what UCC default terms apply in a Battle of the Forms scenario. We now turn our attention to how parties can modify contracts...more
A recent ruling in the Suffolk County Commercial Division highlights the risk a party faces when agreeing to, and later attempting to, enforce an oral modification to a written contract. In Castle Restoration LLC v. Castle...more
In Castle Restoration & Constr., Inc. v Castle Restoration, LLC, Suffolk County Commercial Division Justice Elizabeth H. Emerson refused to enforce an oral agreement that allegedly modified a prior written agreement between...more
Re-iterating the power of so-called no oral modification provisions, the Supreme Court has said that an entity could not become a party to an agreement by novation unless it could show that the agreed contractual procedure...more
Since the Rock Advertising decision of the UK Supreme Court in 2018, 'no oral modification' clauses have generally been strictly enforced. However, in Lim v Hong, the Singapore Court of Appeal has set a more flexible test for...more
If there is no express law of the arbitration agreement, the law with which that agreement has its closest and most real connection is either the law of the underlying contract or the law of the seat of the arbitration. The...more
There is a general policy in New York against allowing multiple or successive motions for summary judgment. And it stands to reason. After all, the word “summary,” from the Latin summa (as in Thomas Aquinas), refers to the...more
The arrival of the new year is a bittersweet time for the Commercial Division as it bids farewell to two of its most senior judges: Justice Charles E. Ramos and Justice Eileen Bransten. Notably, both will be staying on to...more
We commented on whether it is possible to verbally amend a "no oral modification" (NOM) clause in September 2016 (Non-variable variation - never say never), contrasting the position under English and South African law. ...more
The recent decision of the UK Supreme Court in Rock Advertising Limited v MWB Business Exchange Centres Limited [2018] UKSC 24 highlights the need for strict observance of No Oral Modification clauses in agreements....more
Decision confirms that oral modifications to a contract will not be effective if the contract contains a no oral modification clause. In a recent decision, the UK Supreme Court confirmed that an oral modification to a...more
The UK Supreme Court opinion in Rock Advertising Limited v MWB Business Exchange Centres Limited [2018] UKSC 24 marks a step change in English law’s treatment of ‘No Oral Modification’ (“NOM”) clauses. The Court opined that...more
Judgment confirms the effectiveness of contractual provisions that prevent the parties from varying their contract orally. The Supreme Court of the United Kingdom recently held that an oral variation of a contract was...more
Rock Advertising Limited v MWB Business Exchange Centres Ltd (2018) UKSC 24 - Background - A recent decision of the Supreme Court sets out a strict test for varying contracts which contain "No Oral Modification" clauses...more
Last month, the Alabama Supreme Court bypassed the statute of frauds and held that, even though one party had clear record title, the dispute over ownership should go to trial. While the opinion purported to apply...more
In the past, New York Courts have demonstrated a willingness to apply the theory of promissory estoppel, to overcome the legal requirements of the Statute of Frauds. The Restatement (Second) of Contract, Section 139, endorses...more
In an ideal world, any modification of a contract would be in writing, signed by the parties, notarized and witnessed by an independent third party. In the real world, not only are contracts modified, or terms waived, without...more
A recent ruling sets a precedent that no longer allows a contractual clause that purports to preclude variation other than in writing to be regarded as uniformly enforceable. In a recent case concerning the breach of an...more
Anti-oral variation clauses do not prohibit oral variation. The Court of Appeal in Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd (“Globe Motors”) recently provided much overdue clarification on the...more
The Second Circuit recently issued a summary decision concerning the scope of a "no oral modification" clause in contracts governing the sale of helicopters. The underlying dispute involved three separate helicopter purchase...more
Lender liability claims generally arise in one of following contexts: (i) claims seeking recovery of damage or "leverage" to accept discounted payoffs; (ii) counterclaims to foreclosure/receivership/guarantor actions; or...more
In response to a deluge of cases involving parties’ attempts to enforce oral modifications of contracts, the New York Appellate Division, First Department recently reiterated that contractual provisions requiring amendments...more
In HCG Mezzanine Dev. Fund, L.P. v. Jreck Holdings, LLC, Index No. 652797/2011 (N.Y. Sup., N.Y. Cnty. Oct. 26, 2012), the New York Supreme Court (Kornreich, J.) granted Plaintiff HCG Mezzanine Development Fund, L.P.’s (HCG)...more