What are you referring to?
Lewis, S.
What are you referring to? - 2005 - Building 270(8368) 11 February 2005, 66(1) .
Refers to problems with terms and conditions which are often incorporated into contracts. Argues that there are two approaches which can be used when examining the correct terms of contract between two parties. The first was the approach adopted in "Nicolene Ltd v Simmonds" ([1953] 1 QB 543) where the blue pencil test was used where the contract is examined and a decision is made whether it would work if all references to the other terms and conditions were deleted. The other approach was made in "Ove Arup and Partners International Ltd and another v Mirant Asia-Pacific Construction (Hong Kong) Ltd and another" ([2003] EWCA Civ 1729, [2004] BLR 75). Here it was found that the defendant had agreed to a proposal which covered FIDIC terms and the fact that at the relevant time no design agreement using the terms had been entered into did not justify striking out any reference to it.
OVE ARUP AND PARTNERS INTERNATIONAL LTD AND ANOTHER V MIRANT ASIA-PACIFIC CONSTRUCTION (HONG KONG) LTD AND ANOTHER
FIDIC CONDITIONS OF CONTRACT
NICOLENE LTD V SIMMONDS
CONTRACT DISPUTES
What are you referring to? - 2005 - Building 270(8368) 11 February 2005, 66(1) .
Refers to problems with terms and conditions which are often incorporated into contracts. Argues that there are two approaches which can be used when examining the correct terms of contract between two parties. The first was the approach adopted in "Nicolene Ltd v Simmonds" ([1953] 1 QB 543) where the blue pencil test was used where the contract is examined and a decision is made whether it would work if all references to the other terms and conditions were deleted. The other approach was made in "Ove Arup and Partners International Ltd and another v Mirant Asia-Pacific Construction (Hong Kong) Ltd and another" ([2003] EWCA Civ 1729, [2004] BLR 75). Here it was found that the defendant had agreed to a proposal which covered FIDIC terms and the fact that at the relevant time no design agreement using the terms had been entered into did not justify striking out any reference to it.
OVE ARUP AND PARTNERS INTERNATIONAL LTD AND ANOTHER V MIRANT ASIA-PACIFIC CONSTRUCTION (HONG KONG) LTD AND ANOTHER
FIDIC CONDITIONS OF CONTRACT
NICOLENE LTD V SIMMONDS
CONTRACT DISPUTES