LAWS622: Law of Contract - Rock Advertising v MWB Business Exchange Centres Ltd - Law Assignment Help

Assignment Task:

INTRODUCTION

In Rock Advertising v MWB Business Exchange Centres Ltd [2018] UKSC 24 the UK Supreme Court dealt with two fundamental issues in the law of contract. One of those issues concerns whether an agreement whose sole effect is to vary a contract to pay money by substituting an obligation to pay less money or the same money later, is supported by consideration. This issue will be dealt with in class.  

The second issue is whether a contractual term prescribing that an agreement may not be amended save in writing signed on behalf of the parties (commonly called a “No Oral Modification” or NOM clause) is legally effective. This assignment is concerned with the issue of NOM clauses. 

The assignment requires you to analyse carefully the reasoning of the Supreme Court. You may also find it useful to look carefully at the earlier Court of Appeal decision in Rock Advertising ([2016] EWCA Civ 553) and to read some of the other key cases where the issue has been discussed (most of those cases are referred to in the judgments of the Court of Appeal and / or  the Supreme Court respectively). 

INSTRUCTIONS 

You are employed as part of the commercial litigation team in a large law firm based in Auckland. Your managing partner has asked for your help in researching a number of issues which have arisen involving a major client of the firm. One of those issues is whether the client should incorporate a NOM clause in its contractual arrangements. It is not clear what approach the New Zealand courts would take in a case where the question of whether to uphold a NOM clause is at issue but your managing partner draws your attention to the recent decision of the UK Supreme Court in Rock Advertising v MWB Business Exchange Centres Ltd.   She asks you to provide her with a memorandum which addresses the following questions regarding that decision: 

1. Explain fully why for practical reasons contracting parties might want to include a NOM clause in their agreements. (5 MARKS)

2. In what way did the Court of Appeal’s approach with respect to the NOM clause have the effect of overriding the parties’ intentions? (5 MARKS)

3. The Court of Appeal found the NOM clause to be conceptually inconsistent with the idea of “party autonomy”. Explain what the Court of Appeal meant by this. (10 MARKS)

4. What is an entire agreement clause and why do parties in commercial contracts in particular find them useful? In your own words, explain fully why the courts’ willingness to uphold entire agreement clauses lends support to the plurality’s view that any perceived inconsistency in upholding NOM clauses is conceptual only. (20 MARKS)

5. In addition to the analogy with entire agreement clauses, what other reasons does the plurality give for its conclusion that the common law is able to cope with any conceptual inconsistency presented by NOM clauses. (10 MARKS)

6. In paragraph [16] Lord Sumption states: “the safeguard against injustice lies in the various doctrines of estoppel”. With reference to the language used in the Vienna Convention and the UNIDROIT respectively, explain the “injustice” and how the doctrine of equitable estoppel can assist in ameliorating that injustice.        (20 MARKS)

7. In relation to Lord Briggs’ judgment explain –

   1. How  his reasoning differs from the plurality; and

   2. Why he nonetheless comes to the same result on the facts. (15 MARKS)

8. With reference to the rules relating to formation of contracts, explain what is meant by a “subject to contract” qualification.  How does Lord Briggs use the approach of the courts in “subject to contract” cases to support his approach to the NOM clause? (15 MARKS)

Written assignment: Instructions

This assignment may account for 15% of your final mark on the Law of Contract paper. 

1. Your article should be between 1,000-1,200 words (it must not exceed 1,200 words). Note your assignment should include appropriate citations and references included in footnotes (see below) but footnotes are not included in the word count. 

2. You are referred to the rules relating to academic dishonesty set out in the Law School Handbook. The article you submit must be your own work and written in your own words.

3. YOU ARE REQUIRED TO COMPREHENSIVELY REFERENCE the relevant passages from the judgments in the Supreme Court and, where appropriate, those in the Court of Appeal. You are also required to reference appropriately decisions and material taken from any other primary and/or secondary sources which you use.  This should be done in footnotes and in accordance with the rules and conventions set out in McLay, Murray, Orpin, New Zealand Law Style Guide (3rd ed, The Law Foundation 2018)

4. The assignment is due on Thursday 9 April 2020 (week 7) at 12.00 noon.

5. You are required to submit an electronic copy (through Turnitin) of the assignment in accordance with the instructions set out in the Law School Handbook. 

6. You are referred to the rules relating to late submissions and applications for extensions set out in the Law School Handbook.

Written assignment: Marking criteria

Your assignment will be assessed holistically but the following provides an indication of the criteria on which marks will be awarded:

1. Some questions require more in-depth analysis and discussion than others. The marks in brackets after each question are indicative of the weighting which will be given to the respective parts.

2. Substantive content  

Your article should

• Demonstrate a sound appreciation of the issue and its significance for the law of contract;

• Articulate a clear and coherent explanation of the different approaches to the issue. 

3. Presentation, communication and referencing 

Logic and coherency in structuring the arguments; communication skills and clarity of expression; use of appropriate language and style; syntax and grammar; correct citations and attributions with referencing of primary and secondary sources in accordance with the rules and conventions set out in the New Zealand Law Style Guide.

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