Legal Practice Notes

The phrase ‘mutual Wills’ refers to joint or separate Wills made under an agreement to create irrevocable interests in favour of identifiable beneficiaries. While the court recognises that any Will can be revoked by the testator during their lifetime, in the case of mutual Wills, equity will safeguard and enforce the interests arising from the agreement for the beneficiaries. Mutual Wills thereby allow individuals to crystallise their intentions so that, on the second death, the estate is dealt with in line with those intentions. Establishing the existence of a mutual Will The law on what amounts to a mutual Will is helpfully set out by John Gaunt QC in Charles v Fraser: Mutual Wills are Wills made by two or more people, usually in substantially similar terms and granting reciprocal benefits, following an agreement to make such Wills and not to revoke them without the other’s...

Mitigation applies to all damages claims The notion that a claimant should mitigate their loss applies to every civil claim for damages, whether brought in contract, tort, or other recognised circumstances, although much of the case law on mitigation has arisen from contractual disputes. Consequently, even once causation and remoteness are established—subjects covered in practice notes on contractual breach, and on tort and negligence—the amount recoverable may still be affected if the claimant has not mitigated their loss. In essence, the innocent party cannot obtain damages for loss they could have avoided but did not, whether through unreasonable conduct or by failing to act. The key issue in mitigation is which steps it was reasonable, and which it was not, for the claimant to take. This is often referred to as the duty to mitigate or the rule on...

This Practice Note explores the doctrine of mistake in contract law. It surveys common, mutual and unilateral mistake, errors as to identity, and mistake regarding the signed document (non est factum). It also considers the effect of each type on the contract and how mistakes can be addressed by rectification or by construction. For guidance on dealing with errors in the execution of documents, see Practice Note: Deeds— Failure to comply with formalities and other defects and our Execution collection, in particular, The Basics— Q& As— Mistakes in executing documents. For further help where parties choose to fix a mistake by agreeing an amendment to the operative parts of a contract, see Practice Note: Contract variation. What is a mistake? A mistake is a wrong belief held by one or both parties at the point of contract formation. A mistake may relate to the: subject matter or the...

Lexcel is the Law Society’s benchmark for practice management. Accreditation is not mandatory, though Lexcel status can assist firms seeking accreditation under the Conveyancing Quality Scheme ( CQS) or the Legal Services Board’s Specialist Quality Mark ( SQM). This Practice Note highlights specific Precedents you may use or tailor, where appropriate and necessary, to meet the requirements of Lexcel v6.1. 1. Structure and strategy For detailed requirements, see: Lexcel practice management standard version 6.1......

What is a letter of intent? Within construction and engineering projects, letters of intent enable an employer to mobilise a contractor before the employer is ready to enter the full building contract. They are often used to bridge the gap until the main contract can be finalised. The letter might simply direct the contractor to advance design and procurement for the scheme, or it may permit works to begin on site. The shape and complexity of such letters differ considerably, and vary widely. At its most basic, a letter of intent may only record a party’s present aim to enter a contract for construction works at a later date. Without more, that document amounts to no more than a non-binding expression of current intention, much like a comfort letter. However, the forms commonly used for contemporary construction arrangements are markedly more intricate and are...

Lenders commonly take security to support a borrower’s duties under a loan. Granting security gives them specified rights over the secured assets if the borrower does not repay. Under English law, four forms of security interest are recognised: mortgages charges pledges liens For an overview of each, see Practice Note: Types of security; for mortgages, see Practice Note: Mortgages; for charges, see Practice Note: Fixed and floating charges; and for pledges, see Practice Note: Pledges. This Practice Note covers: the distinction between legal and equitable security interests which security types can be legal and which can be equitable (or both) the principal advantages of legal security the principal advantages of equitable security Legal or equitable security? The security interest granted to the secured party will be legal or equitable. Certain forms of security can assume either character; some are always legal while...

Scope and purpose This Practice Note is intended to aid the review and/or negotiation of a consignment stock agreement, and sits alongside the Precedents: Consignment stock agreement—pro-customer and Consignment stock agreement—pro-supplier. Under a consignment stock set-up, the seller of goods (the consignor) places a stock of goods with the buyer (the consignee) while retaining title until the point the buyer takes or appropriates items for its own use. The buyer typically keeps the seller’s stock on its own premises and may draw on it as needed. This differs subtly from a standard supply on retention of title terms: with consignment stock (absent contrary wording), no contract of sale for identified consigned goods arises until the buyer appropriates them from the stock for use, whereas in a typical supply the contract usually exists before delivery Types of consignment stock...

NOTE—to check whether notification thresholds in Kazakhstan and across the globe are satisfied, please refer to: Where to Notify. 1. Have there been any recent developments regarding the regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Kazakhstan? The principal law regulating economic merger matters in Kazakhstan is the Business Code dated 29 October 2015 (the Business Code)......

What is judicial review? Judicial review is the means by which the courts exercise a supervisory jurisdiction over the performance of public functions by public bodies. This supervisory jurisdiction should not be mistaken for, or treated as, a right of appeal. CPR 54.1 states that a 'claim for judicial review' means a claim to assess the lawfulness of: an enactment a decision, action, or failure to act in relation to the exercise of a public function. Proceedings usually take place in the Administrative Court, which forms part of the King's Bench Division of the High Court. Judicial review proceedings are governed by a number of Civil Procedure Rules, Practice Directions and a pre-action protocol. Further detailed and practical guidance is provided in the Administrative Court Judicial Review Guide. The guide is intended to assist parties pursuing judicial review claims in the...

This guide provides searchable shortcuts to PDF versions of the JCT 2011 standard-form contracts. For our comprehensive range of resources concerning the JCT 2011 contracts, refer to the subtopic: JCT contracts 2011......

Uniform rules concerning the contract for international carriage of goods by rail ( CIM): Encyclopaedia of Forms and Precedents [43] This Practice Note summarises the legal position on the carriage of goods by rail as set out in the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail ( CIM). It covers: the scope of application of CIM; the contract of carriage governed by CIM; the apportionment of liability under CIM; time bars; jurisdiction. It explains each of these elements within the framework of CIM. It also sets out time bars and jurisdiction under CIM, and the basis on which liability is shared. International rail carriage is regulated by the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail ( CIM) (the Rules). The Rules are made under the Convention concerning...

Roles and responsibilities within a financial institution This Practice Note outlines the principal roles within a financial institution, the responsibilities linked to each, and how and when an in-house lawyer may engage with them. Financial institutions include investment banks, retail banks, private wealth banks, or other investment arms—including asset managers or funds. It is primarily aimed at in-house banking and finance lawyers working at investment banks. Front office The front office is the client-facing arm of a bank that generates revenue. Typical activities undertaken by front-office professionals include: pitching fresh trading strategies and concepts to investors assisting clients in addressing their financing challenges creating and/or distributing investment products trading in secondary market instruments arranging debt issuance through the debt capital markets providing commercial lending, and producing research reports Within an investment bank, sales and trading work in close...

Pursuant to Article 20 of the IDD, producers of non-life insurance, such as motor insurance or home contents policies, must prepare an Insurance Product Information Document ( IPID), which distributors are obliged to give customers before the insurance contract is finalised. This Practice Note outlines the IPID requirements in Directive ( EU) 2016/97, the Insurance Distribution Directive, which replaced the Insurance Mediation Directive (2002/92/ EC) from 1 October 2018. For more information on the IDD, see: EU Insurance Distribution Directive ( IDD)—essentials EU Insurance Distribution Directive ( IDD)—scope, registration, passporting and sanctions EU Insurance Distribution Directive ( IDD)—organisational and conduct of business requirements EU Insurance Distribution Directive ( IDD)—insurance-based investment products Requirements of the IPID Article 20 of the IDD Before a contract is entered into, whether or not advice is given and regardless of any bundling, the distributor must supply the...

Commercial contracts— Germany— Q& A guide [ Archived, 2022 edition] This Practice Note offers a jurisdiction-specific Q& A overview of commercial contracts in Germany, issued as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2022). Authors: Lutz Abel Rechtsanwalts Part G mb B— Marius Mann; Benjamin Baisch; Björn Weidehaas 1. Is there an obligation to use good faith when negotiating a contract? Yes. Good faith is set out in section 242 of the German Civil Code ( BGB) and is a basic tenet of German law. It imposes a duty on both contracting parties to fulfil their obligations faithfully and sincerely, taking customary practice into account. Nevertheless, where there is no breach of specific provisions of the BGB or the German Commercial Code ( HGB), enforcing a claim that relies solely on the general clause in section 242 BGB is...

This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 ( Tr A 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed...

Scope of this Practice Note This Practice Note sets out the Financial Conduct Authority’s ( FCA) custody requirements contained in the Client Assets sourcebook ( CASS), a component of the FCA Handbook, that regulated firms must adhere to when safeguarding and administering investments. These provisions cover custody assets, encompassing safe custody investments (being designated investments that a firm accepts or holds for a client) and any additional assets kept within the same portfolio as those safe custody investments for that client. It therefore sets parameters for firms’ conduct whenever they hold or control a client’s designated investments and any associated assets within that client’s portfolio appropriately. What do the cover? The chapter 6 custody rules in the Financial Conduct Authority’s ( FCA) Client Assets sourcebook ( CASS) explain the steps a firm must take when it undertakes the regulated activity of...

This Practice Note contrasts the JCT, NEC and FIDIC suites by identifying the events and risks that give the Contractor entitlement to extensions of time and financial relief. These are set out in the following: JCT—the schedule of Relevant Events ( REs) expressly for extensions of time, and the schedule of Relevant Matters ( RMs) for claims of loss and expense NEC3/ NEC4 ECC—the catalogue of Compensation events, under which the Contractor may potentially recover both time and money FIDIC—in clause 8.4 [ Extension of Time for Completion] for extensions of time, and also in several other provisions across the contract specifically addressing time and money For JCT and NEC, the accompanying table should be read expressly alongside the Practice Notes: JCT—interpreting the lists of Relevant Events and Relevant Matters; and NEC...

Businesses commonly rely on joint ventures to break into fresh markets and to design, develop, and launch new products. This notion spans a wide array of scenarios and arrangements, including: structural setups that establish or alter the economic control of a given legal entity: joint venture companies themselves partnerships between participants alterations to existing shareholder control non-structural joint ventures: contract-based joint projects informal (not documented) collaborations For many joint venture arrangements, the extent of 'control' each party holds is often pivotal—though its meaning can be understood differently in varying contexts. This is...

This guide explains the use of e-signatures across a range of international jurisdictions. A comprehensive table provides a quick-reference overview of whether, and in what ways, e-signatures are deployed in different countries. More extensive detail on every overseas jurisdiction listed is provided in the sections that follow. For detailed information on executing contracts in multiple jurisdictions, see Practice Note: Execution of contracts—jurisdictional guide. For guidance on the execution of deeds in different jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For insight into how contracts are formed across various jurisdictions, see Practice Note: Contract formation—jurisdictional guide. For information concerning the execution of documents under Scots law, see Execution— Scotland—overview. Please note that this is an introductory resource only, and that local advice from suitably qualified legal professionals in the relevant country should be obtained where...

What is a power purchase agreement? A power purchase agreement ( PPA) is a contract between an electricity producer (generator) and the buyer of that electricity (offtaker) that sets out the commercial terms governing the sale and purchase of power from a generation project. For our comprehensive suite of resources and precedents on power purchase, see: Power purchase agreements and routes to market—overview. A PPA offers a route to market for electricity produced by the generator and, for renewable generating stations, any green benefits the generator receives for producing electricity from renewable sources, which may be sold on to electricity suppliers. It is the agreement under which a significant share (if not all) of a project’s revenues are earned and, as a result, the PPA supports the economics of most power projects. Most PPAs include provisions addressing the following matters: ...