It it good that the legal world seems to have a resilient sense of humour. Lawyers tend to take themselves far too seriously. However, they should be egged on from time to time. So, it was a relief to see an email from a law firm circulating on 1st April to the effect that the egg (including its design, shape, method of production, use and various applications) was about to be made subject to simultaneous worldwide patent applications and that the terms “egg”  and “i-egg” were to be protected under IP laws. Egg producers worldwide were advised to get legal advice urgently- (on the development of square eggs?) It all sounds very bizarre and no doubt patent attorneys and IP experts will see the obvious legal obstacles, but it is at least food for (legal) thought! Have a Happy and Enjoyable Easter with family and friends...

We are usually so busy “managing” the substantive clauses in business contracts that we forget to consider the procedural issues of contract formation: simply put, when does my contract come into existence? As every law student learns, contracts are formed by way of an agreement on essential terms e.g. price, subject matter and (perhaps) delivery or performance dates. Generally, this means an offer to enter into a contract is accepted. Unless otherwise required by law or the parties, an offer and acceptance may be communicated orally (spoken), in writing or, by other means such as email etc. On the other hand, an offer or acceptance need not always be express; these elements may be implied, i.e. inferred from the actions of the parties, common practice, or the general circumstances. For example, §151 German Civil Code (BGB) states that an acceptance need not be communicated if such communication is not expected in customary practice. This allows for acceptance by conduct and, especially performance. Any response to any offer which changes the terms of that offer or provides supplementary terms is, not an acceptance, but a counter-offer. This principle or so-called “Mirror Image Rule” is used in Common Law and is set out in Art. 19(1) of the Vienna Convention on Contracts for the International Sale of Goods (CISG) as well as §150(2) (BGB). However, a major caveat to this principle of contract formation has been adopted by Article 19(2) (CISG): 1. A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.2. However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.3. Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party’s liability to the other or the settlement of disputes are considered to alter the terms of the offer materially. This means that the terms of the offer and acceptance will be combined if they do not “materially” alter the terms of the original offer. Terms related to fundamental issues are defined in CISG, in a non-exclusive manner, as being those dealing with price, payment, quality, quantity, delivery etc. Since UN Sales Law (CISG) is being used increasingly more widely in cross-border...

£50k has been awarded to a US law firm by an English court for abusive comments posted on Google profile. In the case of Bussey Law Firm PC and Timothy Raymond Bussey v Jason Page (aka Jay Page) [2015] EWHC 563 (QB) (from 6 March 2015) the English High Court has awarded damages to a US law firm based in the State of Colorado for defamatory comments placed by an English resident in a Google profile of the American lawyers. There was no defence of truth lodged by the defendant individual and other comments on the internet had rated the law firm as “excellent.” The court stated that the purpose of compensatory general damages was threefold: for the hurt feelings and distress, for injury to reputation, as well as bearing in mind the need to award a sum which will serve as an outward and visible sign of vindication. It was also indicated that an injunction would have been available if there had been any indication of the conduct being repeated by the defendant against the plaintiff. see also The Law Society Gazette, 6 March...

    What are “warranties and representations” ? In everyday business situations the word “warranty” is often used to mean a promise of quality and is often supported by repair or replacement obligations.   However, in contract law the same word has been given at least two technical meanings by the courts: a) an undertaking of fact given under a contract and, b) a term which is not of fundamental importance to a contract and therefore, unless agreed otherwise, the breach of which will not automatically lead to a right of termination.   In relation to the first meaning of contractual undertakings of fact, we often find a heading “representations and warranties” in contracts. Is there a difference between the two? Yes, there is. Although our U.S. cousins may not always be of the sameopinion, under English law a representation is a pre-contractual statement of fact made and constituting an inducement to enter into a contract. A warranty relates to a contractualundertaking.   This long-established difference under English law was confirmed recently in the case of Sycamore Bidco Ltd v (1) Sean Breslin (2) Andrew Dawson [2012] EWHC 343 (Ch) where the court held that statements made in a contract were not representations because the parties had not expressly referred to them as such. In the Sycamore case the judge described “a conceptual problem” in treating contractual provisions as representations. In order to make a claim for misrepresentation, it is essential that the claimant was induced by therepresentation to enter into the contract. There is therefore what the judge called “a timing problem” because something that is contained in the agreement (and therefore has no effect until the agreement is signed) cannotbe said to have caused the agreement to be entered into. However, the judge left open the door to contracting parties expressly providing that certain statements were to be treated (also)as representations.   It is critical in drafting contract to identify where and undertaking is a “warranty” or a “representation” or both. The difference is important since, in addition to any damages awarded, misrepresentations claims, if successful, could lead to a rescission of the contract whereas a breach of warranties could lead at worst to termination.   reproduced from Lawspeak, September...

– magnetc sign decorating a male colleague’s...

If you thought that lawyers have a bad reputation today, I am afraid it was not enhanced by the popular media a few centuries...