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Validity Of Entire Agreement Clauses

However, as confirmed by the Wood/Capita Supreme Court (see our briefing), the contractual provisions cannot be interpreted in isolation. The court will consider the clause as part of the agreement as a whole. The clauses of the boiler platform are no exception to this rule. “This instrument contains all the consent of the parties to the purpose of this contract, and there is no other commitment, insurance, guarantee, use or practice that influences them.” The concepts of type that are implied in Hipwell on the basis of commercial efficiency have been described as “intrinsic” to the written agreement, in the sense that they are part of the contract itself. Therefore, the basic position on these implicit terms “intrinsic” is that they cannot be excluded by a full contractual clause, even if they contain language that generally purports to exclude unspoken clauses.6 Recent jurisprudence shows that a full contractual clause will not prevent a party from relying on estoppel to enforce a pre-contracting agreement. Recent case law shows that it is important to carefully consider the effects of whole contractual clauses when they are included in trade agreements. In particular, if a party wishes to exclude liability for pre-contract insurance, the contract must expressly exclude this liability, although liability for fraudulent pre-contract insurance can never be excluded. Contracting parties often attempt to argue that a particular clause should be included in the treaty on the basis of its importance to the treaty as a whole. In the area of energy and natural resources, natural resource sales agreements may provide, for example, that the designation of a goods inspector is definitive and binding on quality, except in the event of a clear error.3 In this case, a party may argue that, where there is a clear error, a clause requiring the inspector to retain a representative part of the audited sample should be included in the contract. The inclusion of such an implicit concept may facilitate the creation of a clear error for a party and, therefore, it could be described as important for the operation of the contract.

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