Glossary

A · B · C · D · E · F · H · I · M · N · P · R · S · T · W

A

All reasonable endeavours

The middle strength of a promise to try: the party must try every reasonable way. A court may treat it as close to best endeavours. Kestrow must use it to get parts, but that does not move the repair deadline. Agreement, clause 5.4 · Chapter 6 · see Best endeavours, Reasonable endeavours

And/or

A slash that leaves the reader to choose between “and” and “or”. Kestrow’s mark-up listed “a shortage of parts and/or labour”, so nobody could say whether one shortage was enough. Write “either or both”, or list the cases. Kestrow’s mark-up, clause 15.1 · Chapter 5

Authorised signatory

A person the Companies Act 2006 lets sign a deed for a company. A company signs a deed through two authorised signatories, or one director with a witness in the room. The Agreement was not a deed, so it needed neither. Chapter 10 · see Deed, Execution

B

Best endeavours

The strongest promise to try. It may mean acting against your own interest, but it promises effort, not a result. In the Agreement, version 1’s best endeavours to return each van within 48 hours became a firm deadline and a replacement van. Version 1, clause 5.2 · Chapter 6 · see All reasonable endeavours, Reasonable endeavours

Boilerplate

The clauses at the back of a contract that appear in almost every deal, such as notices and governing law. They look standard, so people paste them in unread. In the Agreement they are clauses 16 to 22, each fitted to this deal. Agreement, clause 16.1 · Chapter 8 · see Entire agreement clause, Notice clause

Business Day

Any day except a Saturday, a Sunday or a public holiday in England. The Agreement uses it to time paperwork, such as invoices and posted notices. The repair clauses count Working Days instead, which include Saturdays. Agreement, clause 1.1, “Business Day” · Chapter 7 · see Working Day

C

Calendar month

A month by the calendar, not four weeks or a set number of days. Section 61 of the Law of Property Act 1925 gives “month” this meaning in a contract. So the month the bakery has to leave after a price notice is a calendar month. Chapter 7

Comparison

Your own redline of the other side’s version against the version you sent. Software builds it, and it shows every change, marked or not. Yours found the change Kestrow’s solicitors had not marked in the force majeure clause. Chapter 9 · see Issues list, Mark-up

Contra proferentem

An old rule for reading unclear words. Words that stay unclear may be read against the party that relies on them. It is a last resort, so never draft in the hope of it. Chapter 3 · see Ejusdem generis

Counterparts

Separate copies of one contract, each signed by one party. Each copy is an original, and together they form one agreement. So neither side has to wait for the other’s page to arrive. Agreement, clause 21.1 · Chapter 10 · see Electronic signature

Cross-reference

A pointer from one clause to another by number, such as “given under clause 5.3”. A new clause in the middle moves the numbers after it, so a pointer can lead to the wrong place. Check every cross-reference last. Chapter 2 · see Schedule

D

Deed

A document signed in a formal way. A company signs one through two authorised signatories, or one director with a witness in the room. Version 1’s signature page came from a deed precedent, but the Agreement did not need to be a deed. Version 1, signature page · Chapter 10 · see Authorised signatory, Execution

Deemed receipt

The moment the contract says a notice is received, whether or not anyone reads it. Under the Agreement, a posted notice arrives on the second business day after posting. An email sent after 5 p.m. counts on the next business day. Agreement, clause 17.2 · Chapter 8 · see Notice clause

Defined term

A word the contract gives one fixed meaning, written with a capital letter. Wherever it appears, its definition is read in its place. So a change to one definition changes every clause that uses the word. Agreement, clause 1.1 · Chapter 4 · see Extension Period, Initial Term

E

Ejusdem generis

An old rule for reading lists. General words after a list are read as the same kind as the list. So in “fire, flood or any other cause”, the last words may cover only events like fire and flood. Version 1, clause 15.1 · Chapter 3 · see Contra proferentem, Force majeure

Electronic signature

A signature made on a screen, not on paper. The Agreement says it binds like a handwritten one. Both companies signed the Agreement this way, on a signing platform. Agreement, clause 21.2 · Chapter 10 · see Counterparts, Execution

Entire agreement clause

A clause saying the signed contract is the whole deal. It replaces the drafts, the term sheet and earlier talks, so nobody can add terms from them. A claim for fraud stays open. Agreement, clause 16.1 · Chapter 8 · see Boilerplate

Execution

The signing of a contract in a form the law accepts, so that it binds. For the Agreement, one director signed for each company, with no witness. Each signature must sit on the final version. Signing, the signature blocks · Chapter 10 · see Deed, Electronic signature

Extension Period

The Agreement’s name for the fourth year, which Polgarrow may choose to add by notice. It runs for 12 months after the Initial Term. “Term” covers both periods, so every clause that runs during the Term runs in year four too. Agreement, clause 1.1, “Extension Period” · Chapter 4 · see Initial Term

F

First draft

The first full version of the contract, written by one side’s lawyers. It turns the business points into words that bind. It sets every default, so the side that writes it gains. Chapter 1 · see Precedent, Term sheet

Force majeure

An event a party cannot control that excuses it from its duties while the event lasts. The Agreement lists the events, then says what is out. A strike by a party’s own staff, or a shortage of parts or labour, counts only if a listed event causes it. Agreement, clause 15.1 · Chapter 3 · see Ejusdem generis

H

Heads of terms

Another name for a term sheet: a short table of the points agreed so far, before anyone drafts the contract. Chapter 1 · see Term sheet

I

Initial Term

The Agreement’s name for the first three years, from the Start Date to 31 March 2030. With the Extension Period, it makes up the “Term”. Two names let each clause say which period it means. Agreement, clause 1.1, “Initial Term” · Chapter 4 · see Extension Period

Issues list

A table of each change in the other side’s mark-up, with your view, your reason and who decides it. Hennacott’s list stayed inside the firm. Kestrow saw only the next version and its covering email. Issues List, heading · Chapter 9 · see Comparison, Mark-up

M

Mark-up

Your draft sent back by the other side, with its changes shown. Kestrow’s solicitors sent theirs as version 3. One change in it was not marked, so always check a mark-up against your own comparison. Kestrow’s mark-up, covering email · Chapter 1 · see Comparison, Issues list

N

No oral modification clause

A clause saying a change counts only if it is in writing and signed for each party. The Supreme Court has held that such a clause works. The Agreement lets routine changes, such as adding a van, go by notice instead. Agreement, clause 19.1 · Chapter 8 · see Boilerplate

Notice clause

The clause that says how one party tells the other something formal under the contract. The Agreement sends notices to the registered office for the time being, or to the email last given for notices. So a notice follows the bakery when it moves. Agreement, clause 17.1 · Chapter 8 · see Deemed receipt

Notwithstanding

“Notwithstanding clause X” means this clause wins over clause X. Clause 12.3 opens with the word, so it wins over the cap on liability. Nothing limits liability for death or injury caused by negligence, or for fraud. Agreement, clause 12.3 · Chapter 5

P

Precedent

A contract for a similar deal that the firm keeps to build on. You start the first draft from it, then fit every clause to this deal. Its boilerplate and signature page need the same check. Chapter 1 · see First draft

R

Reasonable endeavours

The weakest promise to try: the party must make a sensible effort. Kestrow’s mark-up put “use reasonable endeavours to” in front of the repair deadline. Kestrow gave way at the issues call, and the firm deadline stayed. Kestrow’s mark-up, clause 5.2 · Chapter 6 · see All reasonable endeavours, Best endeavours

Recitals

The lettered lines near the start that say why the parties are making the deal. They bind nobody, so every promise belongs in a numbered clause. The Agreement heads its recitals “Background”. Agreement, background · Chapter 2

S

Schedule

A part at the back of a contract that holds lists and detail, such as the vans by fleet number. The detail sits there because it changes. If a schedule conflicts with a clause, the clause wins. Agreement, Schedule 1 · Chapter 2 · see Cross-reference

Service credit

A fixed sum taken off the charges when the supplier misses a set standard. Kestrow owes a £100 credit for each working day past the repair deadline with no van at all. More than 10 credits in any 3 months let Polgarrow end the Agreement. Agreement, clause 1.1, “Service Credit” · Chapter 6 · see Working Day

Subject to contract

Words on a term sheet that mean nobody is bound yet. Only the signed contract binds. The term sheet for the vans carries them at the top. Term Sheet, heading · Chapter 1 · see Term sheet

T

Term sheet

A short table of the business points agreed so far, before the contract is drafted. Leonie built this one from the client’s notes and Kestrow’s written quote. It left gaps, such as who collects a broken van. Term Sheet, heading · Chapter 1 · see Heads of terms, Subject to contract

W

Working Day

Any day except a Sunday or a public holiday in England, so Saturday counts. The repair clauses count Working Days, because the bakery delivers on Saturdays. When Kestrow’s mark-up took Saturday out, you rejected the change. Agreement, clause 1.1, “Working Day” · Chapter 7 · see Business Day