Questions relating to the effectiveness of entire contractual terms seem to arise more and more frequently in disputes, in particular with regard to disputes relating to long-term contracts such as joint ventures, long-term supply agreements, long-term financing agreements or amendments and/or renewals of such agreements or agreements, for which the parties have had a long period of activity. If, for any reason, the prior agreement is not explicitly included, this prior agreement may, in certain circumstances, give rise to a legally binding obligation, notwithstanding the fact that the contract contains a full contractual clause. This is due to the doctrine of waiver by agreement, which was recently investigated in relation to entire contractual terms in Mears Ltd v Shoreline Housing Partnership Ltd3. Problems often arise when differences arise as to the importance and effect of such contracts or agreements and when a party attempts to look at itself outside the contractual terms to base a claim, defence or argument. 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. 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. The final contract contained a whole contractual clause.
Shoreline argued that this clause prevented Mears from relying on the pre-contractual agreement. Akenhead J. noted, however, that “the clause relating to the whole agreement does not exclude or limit confidence in an established and effective rate of legal effect, nor in its explicit wording or interpretation”, it was found that before the beginning of the contract, the parties shared the facts adopted and had relied on this assumption for a significant period of time, so that it would be unfair to allow Shoreline to enforce the contractual conditions in order to avoid the performance of its obligations under the pre-contractual agreement. . . .