However, there are many restrictions on the effectiveness of entire contractual clauses. However, in order to enhance protection through a full contractual clause, the parties should take into account the following: in conclusion, it is important not to consider the entire contractual clause as a boilerplate clause, but to carefully consider the wording of that clause. The clear and precise wording of such a clause, with the help of an appropriate professional, avoids reckless and counterproductive litigation and protects the founders or promoters from any harshness. In summary, parties should ensure that they are clear in advance about what has been included and excluded before it is executed. As we have seen, it is often necessary to introduce additional clauses into the Treaty in order to exclude tacit clauses or pre-contractual assurances or to include certain pre-contractual agreements. Otherwise, a simple misunderstanding could lead to costly litigation. The final contract contained a whole contractual clause. Shoreline argued that this clause prevented Mears from relying on the pre-contractual agreement. However, Akenhead J.
stated that “the clause relating to the whole agreement does not exclude or limit confidence in an established and effective rate of legal effect, nor to its explicit wording or interpretation” It was found that prior to the commencement of the contract, the parties shared the accepted facts and had relied on this assumption for a significant period of time, so it would be unfair: Shoreline to enforce the contractual conditions in order to avoid the performance of its obligations under the pre-contractual agreement. 4. Prior agreements and legal effects by agreement – Finally, when concluding a contract, the parties should check whether agreements were concluded before the treaty and should be included in such a contract. If so, this should be done by making explicit reference to this agreement and integrating it into the new treaty. If this has been done correctly, a whole contractual clause will not exclude it. In addition, case law has set four specific restrictions on entire contractual clauses: entire contractual clauses do so by providing that the agreement between the parties is limited to the conditions contained in the contractual documentation and nothing else. Extensions of clauses such as this are made if, say, the parties could also usefully examine whether there is relevant pre-contractual conduct or pre-knowledge between the parties, which could be excluded by an entire contractual clause. Consider the scenario in which a long-term contract is renewed and a “modified” or “adapted” agreement is signed by the parties. If, in the course of the performance of this contract, an accepted practice has developed that does not meet its strict conditions (for example. B invoicing after 30 days if the contract contains 14 days), but the adapted contract is not amended to reflect it and remains in its original form, the parties have probably excluded their right to invoke this previous conduct. Issuing invoices after 30 days would now be a violation as a result of the newly defined agreement. The parties should carefully evaluate the inclusion of a full contractual clause, both when concluding new contracts and when amending or recasting existing contracts.
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