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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11563
Experience:  30 years as a practising solicitor.
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I have a service contract, which was for work to be done as

Resolved Question:

I have a service contract, which was for work to be done as contractor, this contract states that:

[the contract] "shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them."

It also includes clauses about dealing with confidential information and prorogated English Jurisdiction.

Approximately three hours later another contract was agreed prorogating Scottish jurisdiction, with regards XXXXX XXXXX information.

My question is, would the second contract come under the definition of contemporaneous agreements as mentioned in the first contract. And if so, does it render the second contract as null or cancelled?

My reasoning for it being contemporaneous is that the second was agreed during the length of the first.
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.

It's not contemporaneous if the a Scottish contact was entering into afterwards even if it was the same day. In my opinion the confidentiality is entered into understand Scots law. It may not make a difference as that kind of thing are very similar in the two jurisdictions.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.

ok, that was my thought also. I don't know if I can leave a bonus for asking a further but related question and will do if possible.


 


Could it be a good argument that, the second contract signed under duress or undue influence, as without signing it the client would not have provided the information required to allow the contractor to fulfill his obligations under the first contract (frustrating it perhaps)?

Customer: replied 3 years ago.

In simpler terms, the client would not give me the information I needed to complete the work set out in the contract for work unless I signed the contract that would prorogate the jurisdcition of the Scottish Courts, related to clauses that were very similar in effect.

Expert:  JGM replied 3 years ago.
Can you explain this further?
Customer: replied 3 years ago.

The timeline is as follows:


 


1 - Discussions for the work and agreeing rates.


2 - Client accepted the work and agreed to the contract of work by paying a deposit.


3 - The client then stating via email words to the effect of "sign the attached agreement and I will send over the information"


 


However, this information was required in order to complete the work prescribed in the first contract (which was already signed). Without the information, I would not have been able to fulfil my obligations in the first contract, causing me to breach that first contract.

Customer: replied 3 years ago.

Therefore, if I did not sign the second contract, I would have certainly breached the first contract.

Customer: replied 3 years ago.

Sorry point 2 should rad. Client accepted the rates and agreed to the contract of work by paying a deposit.

Expert:  JGM replied 3 years ago.
No, I don't think this is a duress case. It is a bit of a mess but I think from what you now say that the that the first contract varied the second and you accepted the variation. Had you not done so the other party would have been in implied breach by not giving you the information to enable you to do the contract.

You could have refused to sign the second document on the premise that you can import terms into a contract that has already been entered into without the concurrence of both parties. However, sensibly, you did so as to get the job done.
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