Jon Chapman
Jon is a senior consultant at Clarkslegal LLP. He has experience at senior level in private practice with Clifford Chance, as well as in-house in the energy and media industries. He has extensive experience in Corporate matters, such as mergers and acquisitions and corporate finance, and in Commercial matters, including asset sale and purchase agreements, intellectual property licensing, data protection, contracts for the supply of goods and services and franchising.
Practice Area
Panel
- Contributing Author
Qualified Year
- 1986
Education
- Winchester College
- New College
- Oxford
- City of London Polytechnic
8 Contributions by Jon Chapman
PRACTICE NOTES
Entire agreement and non-reliance clauses: interpretation, implied terms, misrepresentation, contractual/evidential estoppel, fraud, remedy limitations and statutory controls, and relationship with exclusion clauses
Parties often wish to stipulate that the entirety of their contractual relationship is governed by the written agreement they have signed. This is known as an ‘entire agreement clause’. This Practice Note examines why such clauses are used and the principal issues relevant to their operation, including the interplay between entire agreement clauses and implied terms, misrepresentation, fraud and exclusion clauses, non-reliance statements, and broader matters of evidential estoppel and contractual estoppel. For further guidance on construing the scope of parties’ contractual obligations, see Practice Notes:
The parol evidence rule in interpreting contracts
Contract interpretation—admissibility of surrounding documents and related content
What is an entire agreement clause?
At its simplest, an entire agreement clause provides that the whole of the parties’ contractual dealings is governed exclusively by the terms contained in their written contract. Consequently, when interpreting the contract, the court is restricted to the 'four corners of the agreement', and pre-contractual communications between the parties are immaterial to that exercise, cannot be considered by the court, and cannot give rise to liability...
Dispute Resolution
PRACTICE NOTES
Misrepresentation: Excluding or Limiting Liability via Non-reliance and Basis Clauses and Remedy Limits; UCTA 1977 s 11 Reasonableness and MA 1967 s 3
This Practice Note explains the circumstances and methods by which parties may seek to limit or exclude liability for misrepresentation, by invoking section 3 of the Misrepresentation Act 1967 (MA 1967) together with the section 11 reasonableness test under the Unfair Contract Terms Act 1977 (UCTA 1977). Note: from 1 October 2015, UCTA 1977 applies only to business-to-business contracts; for consumer contracts, see sections 61–76 of the Consumer Rights Act 2015 (CRA 2015).
For guidance on rescission and damages arising from misrepresentation, see:
Misrepresentation—damages as a remedy
Misrepresentation—rescission as a remedy
For related matters, including:
Entire agreement clauses and their role in limiting or excluding liability for misrepresentation—see Practice Note: Contract interpretation—entire agreement clauses
Non-reliance clauses used to exclude or limit liability for misrepresentation and the notion of ‘contractual estoppel’—see Practice Note: Contractual estoppel
What are exclusion clauses for misrepresentation?
In substantial and complex agreements, it is common for the parties to include terms designed to curtail or exclude a party’s ability to bring a claim for misrepresentation...
Dispute Resolution
PRACTICE NOTES
Novation of contracts: practical guidance on consent and consideration, distinctions from assignment/variation, novation by conduct or estoppel, partial novation, limitation, and drafting: warranties, indemnities and claims
What is novation of a contract?
At certain points, rather than transferring the benefit of a contract to a third party, the original counterparties may prefer to discharge their mutual obligations and, effectively, put the arrangement in place afresh, with the third party replacing one of them. This is the usual form of novation. When advising a client, you should understand the conditions for a valid novation and the implications for both the incoming party and the departing novation party once novation occurs, some of which might be avoided at the drafting stage. A Precedent: Novation agreement—long form is available. For a practical overview of novating commercial contracts with links to relevant precedents, see Practice Note: How to novate a contract. For this Practice Note, the parties to the novation are referred to as:
remaining party—(A)
outgoing party—(B)
incoming party—(C)
...
Dispute Resolution
PRECEDENTS
Long-form tripartite novation agreement with mutual releases, warranties, amendments, pre-novation claims handling and indemnities (England and Wales law)
This Agreement is entered into on [ date ]
Parties
[ insert name of party ] [ of OR a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is at [ insert address ] ] (Outgoing Party);
[ insert name of party ] [ of OR a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is at [ insert address ] ] (Incoming Party);
[ insert name of party ] [ of OR a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is at [ insert address ] ] (Remaining Party),
each of the Outgoing Party, Incoming Party and Remaining Party being a party and, together, the Outgoing Party, Incoming Party and Remaining Party are the parties.
BACKGROUND (A)
The Outgoing Party intends, by novation, to transfer its rights and obligations under the Original Contract (as defined below) to the Incoming Party, in accordance with this Agreement...
Commercial
PRECEDENTS
Short form tripartite deed of novation with mutual release, pre-novation claims preserved, and optional warranties and indemnity (England and Wales)
This Deed is entered into on [ date ]
Parties
[ insert name of party ] [ of OR a company registered in [ England and Wales ] with number [ insert registered number ], whose registered office is at ] [ insert address ] (Outgoing Party);
[ insert name of party ] [ of OR a company registered in [ England and Wales ] with number [ insert registered number ], whose registered office is at ] [ insert address ] (Incoming Party);
[ insert name of party ] [ of OR a company registered in [ England and Wales ] with number [ insert registered number ], whose registered office is at ] [ insert address ] (Remaining Party),
each of the Outgoing Party, Incoming Party and Remaining Party being a party, and together the Outgoing Party, Incoming Party and Remaining Party are the parties.
BACKGROUND
(A) The Outgoing Party intends to pass, by way of novation, its rights and obligations under the Original Contract (as defined below) to the Incoming Party, in accordance with this Deed...
Commercial
PRECEDENTS
Tripartite Novation Agreement (Short Form) for Substitution and Mutual Release (England and Wales)
This Agreement is dated [ date ]
Parties
[ insert name of party ] [ of OR a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is at [ insert address ] ] (Outgoing Party);
[ insert name of party ] [ of OR a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is at [ insert address ] ] (Incoming Party); and
[ insert name of party ] [ of OR a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is at [ insert address ] ] (Remaining Party).
Each of the Outgoing Party, Incoming Party and Remaining Party is a party and, together, the Outgoing Party, Incoming Party and Remaining Party are the parties.
BACKGROUND
(A) The Outgoing Party intends, by way of novation, to pass its rights and obligations under the Original Contract (as defined below) to the Incoming Party, in accordance with this Agreement...
Commercial
PRECEDENTS
Tripartite Novation Deed (Long Form) Precedent: transfer and assumption of rights and obligations with releases, optional warranties, indemnities and pre‑novation claims provisions (England and Wales law)
This Deed is executed on [ date ]
Parties
[ insert name of party ] [ of, or a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is at ] [ insert address ] ( Outgoing Party );
[ insert name of party ] [ of, or a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is at ] [ insert address ] ( Incoming Party );
[ insert name of party ] [ of, or a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is at ] [ insert address ] ( Remaining Party ),
Each of the Outgoing Party, Incoming Party and Remaining Party is a party and, together, the Outgoing Party, Incoming Party and Remaining Party are the parties.
BACKGROUND
(A) The Outgoing Party seeks to transfer, by way of novation, its rights and obligations under the Original Contract (as defined below) to the Incoming Party, in accordance with this Deed...
Commercial
CHECKLISTS
Novation of commercial contracts: UK practitioner checklist on due diligence, consent, transfer of rights and obligations, allocation of liabilities, warranties, indemnities, claims, amendments, third-party consents and boilerplate
Checklist
This Checklist highlights the principal points and provisions to address when preparing and negotiating the novation of a contract to a third party.
Precedents
Novation agreement-long form
Novation agreement-short form
Deed of novation-long form
Deed of novation-short form
Short form letter of novation
Information on novation
Practice Note: How to novate a contract
Practice Note: Novation-why and how to novate a contract
Third parties, subcontracting and transfers-overview
For sector-specific guidance in construction, see: Novation in construction projects-overview.
Note that for contracts novated on or after 31 December 2018, the Business Contract Terms (Assignment of Receivables) Regulations 2018, SI 2018/1254 may render ineffective any restrictions on assigning receivables. For further detail, see the drafting notes and optional clauses in Precedent: Assignment clause, and News Analyses: Updated draft regulations on business contract terms and Back for good-new Business Contract Terms (Assignment of Receivables Regulations) 2018. The Regulations as made introduce no changes from the draft regulations considered in the analysis.
Issue Consideration
Pre-novation
Due diligence
Consider whether any pre-novation due diligence should be carried out by the...
Commercial
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