Certainty in English law sets out rules for how judges will interpret, sever or put

contracts A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...

trusts A trust is a legal relationship in which the owner of property, or any transferable right, gives it to another to manage and use solely for the benefit of a designated person. In the English common law, the party who entrusts the property is k ...

and other voluntary obligations into effect. If the terms of the contract are uncertain or incomplete, the parties cannot have reached an agreement in the eyes of the law. An agreement to agree does not constitute a contract, and an inability to agree on key issues, which may include such things as

price A price is the (usually not negative) quantity of payment or compensation expected, required, or given by one party to another in return for goods or services. In some situations, especially when the product is a service rather than a ph ...

or safety, may cause the entire contract to fail. However, a court will attempt to give effect to commercial contracts where possible, by construing a reasonable construction of the contract. Courts may also look to external standards, which are either mentioned explicitly in the contract or implied by common practice in a certain field. In addition, the court may also imply a term; if price is excluded, the court may imply a reasonable price, with the exception of land, and second-hand goods, which are unique. If there are uncertain or incomplete clauses in the contract, and all options in resolving its true meaning have failed, it may be possible to sever and void just those affected clauses if the contract includes a

severability clause In law, severability (sometimes known as salvatorius, from Latin) refers to a provision in a contract or piece of legislation which states that if some of the terms are held to be illegal or otherwise unenforceable, the remainder should still apply ...

. The test of whether a clause is severable is an objective test—whether a reasonable person would see the contract standing even without the clause.

Contract law

While agreement is the basis for all contracts, not all agreements are enforceable. A preliminary question is whether the contract is reasonably certain in its essential terms, such as price, subject matter and the identity of the parties. Generally the courts endeavour to "make the agreement work", so in ''

Hillas & Co Ltd v Arcos Ltd ''WN Hillas & Co Ltd v Arcos Ltd'' 932UKHL 2is a landmark House of Lords case on English contract law where the court first began to move away from a strict, literal interpretation of the terms of a contract, and instead interpreted it with a vi ...

'', the House of Lords held that an option to buy softwood of "fair specification" was sufficiently certain to be enforced, when read in the context of previous agreements between the parties. However, the courts do not wish to "make contracts for people", and so in ''

Scammell and Nephew Ltd v Ouston ''G Scammell and Nephew Ltd v HC&JG Ouston'' 9411 AC 251 is an English contract law case, concerning the certainty of an agreement. It stands as an example of a relatively rare case where a court cannot find some way in which a contract can be m ...

'', a clause stipulating the price of buying a new van as "on hire purchase terms" for two years was held unenforceable because there was no objective standard by which the court could know what price was intended or what a reasonable price might be. Similarly, in '' Baird Textile Holdings Ltd v M&S plc'' the Court of Appeal held that because the price and quantity to buy would be uncertain, in part, no term could be implied for M&S to give reasonable notice before terminating its purchasing agreement. Controversially, the House of Lords extended this idea by holding an agreement to negotiate towards a future contract in

good faith In human interactions, good faith () is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case with , which i ...

is insufficiently certain to be enforceable.'' Walford v Miles''

992 Year 992 ( CMXCII) was a leap year starting on Friday of the Julian calendar. Events By place Worldwide * Winter – A superflare from the sun causes an Aurora Borealis, with visibility as far south as Germany and Korea. Euro ...

2 AC 128, overturning a decision of

Bingham LJ Thomas Henry Bingham, Baron Bingham of Cornhill (13 October 193311 September 2010) was a British judge who was successively Master of the Rolls, Lord Chief Justice and Senior Law Lord. On his death in 2010, he was described as the greatest jud ...

in the Court of Appeal. *''

Mercantile Credits Ltd v Harry Trade involves the transfer of goods and services from one person or entity to another, often in exchange for money. Economists refer to a system or network that allows trade as a market. Traders generally negotiate through a medium of credi ...

969 Year 969 ( CMLXIX) was a common year starting on Friday of the Julian calendar, the 969th year of the Common Era (CE) and ''Anno Domini'' (AD) designations, the 969th year of the 1st millennium, the 69th year of the 10th century, and the 10th ...

2 NSWR 248, failure to specify subject matters *

Sale of Goods Act 1979 The Sale of Goods Act 1979 (c. 54) is an Act of the Parliament of the United Kingdom which regulated English contract law and UK commercial law in respect of goods that are sold and bought. The Act consolidated the original Sale of Goods Act ...

, s 8(2), 9, certainty of terms *''

Brown v Gould Brown is a color. It can be considered a composite color, but it is mainly a darker shade of orange. In the CMYK color model used in printing and painting, brown is usually made by combining the colors orange and black. In the RGB color model ...

972 Year 972 ( CMLXXII) was a leap year starting on Monday of the Julian calendar. Events By place Byzantine Empire * Spring – Emperor John I Tzimiskes divides the Bulgarian territories, recently held by the Kievan Rus', into six ...

Ch 53 *'' Sudbrook Trading Estate Ltd v Eggleton''

983 Year 983 ( CMLXXXIII) was a common year starting on Monday of the Julian calendar. Events By place Europe * Summer – Diet of Verona: Emperor Otto II (the Red) declares war against the Byzantine Empire and the Emirate of Sicily ...

1 AC 444 *'' Nicolene Ltd v Simmons''

953 Year 953 ( CMLIII) was a common year starting on Saturday of the Julian calendar. Events By place Byzantine Empire * Battle of Marash: Emir Sayf al-Dawla marches north into the Byzantine Empire and ravages the countryside of Malatya ...

1QB 543 *'' May & Butcher v The King''

934 Year 934 ( CMXXXIV) was a common year starting on Wednesday of the Julian calendar. Events By place Byzantine Empire * Spring and Summer – The Hungarians make an alliance with the Pechenegs, and fight their way through Thrace t ...

2 KB 17, agreement to agree *'' Foley v Classique Coaches Ltd''

2 KB 1 *'' Walford v Miles''

2 AC 128, agreement to negotiate *'' Pitt v PHH Asset Management Ltd''

994 Year 994 ( CMXCIV) was a common year starting on Monday of the Julian calendar. Events By place Byzantine Empire * September 15 – Battle of the Orontes: Fatimid forces, under Turkish general Manjutakin (also the governor ...

1 WLR 327 *'' Branca v Cobarro''

947 Year 947 (Roman numerals, CMXLVII) was a common year starting on Friday of the Julian calendar. Events By place Europe * Summer – A Principality of Hungary, Hungarian army led by Grand Prince Taksony of Hungary, Taksony campaign ...

KB 854, agreement “Subject to Contract” *'' Masters v Cameron'' (1954) 91 CLR 353 *'' Carlton Communications and Granada Media plc v The Football League''

002 002, 0O2, O02, OO2, or 002 may refer to: Airports *0O2, Baker Airport *O02, Nervino Airport Astronomy *1996 OO2, the minor planet 7499 L'Aquila *1990 OO2, the asteroid 9175 Graun Fiction *002, fictional British 00 Agent *''002 Operazione Luna'' ...

EWHC 1650 (Comm)

Trusts law

*'' Jones v Lock'' (1865) 1 Ch App 25 *''

Paul v Constance / 9771 W.L.R. 527 is an English trust law case. It sets out what will be sufficient to establish that someone has intended to create a trust, the first of the "three certainties". It is necessary that a settlor's "words and actions ... show a c ...

977 Year 977 ( CMLXXVII) was a common year starting on Monday of the Julian calendar. Events By place Europe * May – Boris II, dethroned emperor (''tsar'') of Bulgaria, and his brother Roman manage to escape from captivity in Const ...

1 WLR 527 *''

Hunter v Moss ''Hunter v Moss'' 994 1 WLR 452 is an English trusts law case from the Court of Appeal concerning the certainty of subject matter necessary to form a trust. Moss promised Hunter 50 shares in his company as part of an employment contract, but fa ...

1 WLR 452 *''

Re Barlow’s Will Trusts ''Re Barlow's Will Trusts'' 9791 WLR 278 is an English trusts law case, concerning certainty of the words "family" and "friends" in a will. Facts Miss Helen Alice Dorothy Barlow, the testatrix had a large collection of pictures. She specificall ...

979 Year 979 (Roman numerals, CMLXXIX) was a common year starting on Wednesday of the Julian calendar. It was the 979th year of the Common Era and the Anno Domini designation, the 979th year of the 1st millennium, the 79th year of the 10th century, ...

1 WLR 278 *''

McPhail v Doulton , also known as ''Re Baden's Deed Trusts (No 1)'' is a leading English trusts law case by the House of Lords on the certainty of beneficiaries. It held that so long as any given claimant can clearly be determined to be a beneficiary, or not, a t ...

971 Year 971 ( CMLXXI) was a common year starting on Sunday of the Julian calendar. Events By place Byzantine Empire * Battle of Dorostolon: A Byzantine expeditionary army (possibly 30–40,000 men) attacks the Bulgarian frontier, perso ...

AC 424 *''

Re Baden’s Deed Trusts (no 2) is an English trusts law case, concerning the circumstances under which a trust will be held to be uncertain. It followed on from '' McPhail v Doulton'', where the House of Lords affirmed that upholding the settlor's intentions was of paramount ...

973 Year 973 ( CMLXXIII) was a common year starting on Wednesday of the Julian calendar. Events By place Byzantine Empire * Spring – The Byzantine army, led by General Melias ( Domestic of the Schools in the East), continues the op ...

Ch 9 *''

Re Tuck’s Settlement Trusts is a leading English trusts law case, concerning the Certainty in English law, certainty of trusts. Facts Sir Adolph Tuck, a baronet who had run the art publisher Raphael Tuck & Sons, created a trust for future baronets who were married to a w ...

978 Year 978 ( CMLXXVIII) was a common year starting on Tuesday of the Julian calendar. Events By place Byzantine Empire * Battle of Pankaleia: Rebel forces under General Bardas Skleros are defeated by the Byzantine army loyal to Emper ...

Ch 49

Notes

{{English contract law English contract law

Contract law

Trusts law

See also

Notes