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Moving the goalposts

06 December 2013 / John De Waal KC
Issue: 7587 / Categories: Features , Property
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John de Waal QC reports on an unsettling decision on the validity of contractual notices

Questions about the interpretation of, service of, or conditions attached to contractual notices have produced a great deal of litigation in recent years, particularly in the context of the operation of break clauses.

What appeared to be clear was the approach that the court should take when considering how to interpret a break clause or a break notice. The first question is whether the clause prescribes as an indispensable condition for its effective exercise that the notice must contain specific information. In such a case, the omission of that information invalidates the notice. As Lord Hoffmann put it in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, if a clause requires an option notice to be given on pink paper it is not validly exercised by giving it on blue paper, no matter how clear the intention to exercise the option may be.

Therefore, a landlord seeking to argue that a

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