Drafting Techniques to Avoid the Decision in Shevill v Builders Licensing Board
6 Pages Posted: 16 Sep 2021
Date Written: February 2019
The decision in Shevill v Builders Licensing Board may effectively be avoided by the inclusion of anti-Shevill clauses in leases. The cases of Gumland, Progressive Mailing and Impact Funds highlight that labelling a particular clause in a lease as a ‘fundamental’ or ‘essential’ term, breach of which entitles the innocent party to terminate, is all that is required for default to give rise to a right to loss of bargain damages, provided ‘very clear words’ are used in the contract. However, there is an open question as to whether labelling a ‘trivial’ or ‘trifling’ term as essential or fundamental would be sufficient.
Keywords: contract law; contract drafting techniques; commercial leasing
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