Entire agreement clause

Axa Sun Life Services plc v Campbell Martin Ltd and others

Sun Life was claiming against appointed representatives under contracts for sale of financial products. The defendants sought to rely on alleged misrepresentations in defending those claims. In reply AXA turned to the entire agreement clause in the contracts. However, in the opinion of the court the clause only sought to ensure that prior representations did not become terms of the contract; not that liability was to be excluded for pre contract misrepresentations.

To exclude liability clear language is required, either within the entire agreement clause itself or separately. In either case, a specific formulation to expressly preclude liability for misrepresentation should be used, such as one which states the parties' agreement that no representations have been made (as in Springwell Navigation Corporation v JP Morgan Chase Bank [2010] EWCA Civ 1221); or that there has been no reliance on any representations; or which expressly excludes liability for misrepresentation or uses a combination of these.

It is important to note that parties cannot exclude pre-contractual representations which are said to be fraudulent.

Having drafted something along these lines the next question is to ask "is it reasonable". The Court of Appeal held that pre-contractual representations or promises may affect the performance that is reasonably expected of a party. As such, in attempting to exclude collateral warranties or representations, the entire agreement clause was subject to the reasonableness test within s3(2)(b)(i) Unfair Contract Terms Act 1977. The Court also considered that section 3 of the Misrepresentation Act 1967 would also have imposed this requirement, had the clause been found to exclude liability for misrepresentation.

Their Lordships considered that the clause in this case was reasonable. The contract was made between commercial organisations in a commercial context. Even though the claimant was a much larger organisation, the defendants, as financial advisers, were accustomed to dealing with such agreements and could be expected to have read them.

Go back

Subscribe to our RSS feed