This Agreement Replaces

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. In addition, the parties could reasonably verify whether there is relevant pre-contractual conduct or a pre-contractual habit between the parties that could be excluded by a full contractual term. 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 must carefully evaluate the inclusion of a full contractual clause, both when concluding new contracts and when modifying or recasting existing contracts.

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