Can you agree not to modify an agreement orally?

Controversial ruling impacts banks holding bills as security | BDM Blog | BDM Law

This issue came up recently in the Supreme Court (1). Previously it had always been the case under English law that parties could verbally agree to vary anything in a contract, provided of course that there was sufficient evidence, intent and consideration. That also extended to varying clauses which, on their face, prevented oral modifications or variations.

In this case however, an oral agreement between the contracting parties was held to be invalid and unenforceable because it contravened a clause in the contract which expressly prevented such future oral agreements. This clause was known as a “No Oral Modification” clause and they are quite common in contracts where the parties wish to make it clear that no variations will be permitted unless they are evidenced in writing.

These “No Oral Modification” clauses are often confused with “Entire Agreement Clauses” but the latter nullifies any past agreements whereas the former seeks to nullify future agreements to modify or vary unless they are evidenced in writing.

The case also raised a longstanding issue surrounding consideration. If a party performs an act which is merely discharging a pre-existing obligation, does that constitute sufficient consideration giving rise to a new binding agreement? The issue was not considered because the appeal was allowed, but the judgment did say that this area of law is probably ripe for re-examination.

The press report can be found at the following link:

  1. NOM clauses – Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24
BDM is a specialist shipping law firm offering high quality legal advice and representation at a reasonable price. Please follow us on social media by clicking below.

Other Recent Blogs

  • Anti Suit Injunctions What are they and when can you get one | BDM Blog | BDM Law
    March 6, 2024

    Anti Suit Injunctions – What are they and when can you get one?

    Recently, we have been advising clients on a possible anti-suit injunction (ASI) against proceedings commenced in breach of an exclusive jurisdiction clause. On the back of that, we felt it might be useful to release this blog to shed more light on these injunctions, in part[...]

    Read more >
  • Red Sea To go or not to go | BDM Blog | BDM Law
    February 21, 2024

    Red Sea: To go or not to go?

    The world is adjusting to the new reality of ships refusing to run the risk of being targeted by missiles launched by Houthi rebels. Over 50 ships have now been targeted with some seriously damaged. So far, no crew have been killed or injured. However, the risks remain. It[...]

    Read more >
  • BDM partners ranked once again in Who's Who Legal Transport 2024 | BDM Blog | BDM Law
    February 19, 2024

    BDM partners ranked once again in “Who’s Who Legal: Transport 2024”

    Our founding partners have once again been listed as among the world’s leading shipping law practitioners in the Who’s Who Legal: Transport 2024 report. Congratulations to David, Nick and Bob! They commented: “We are very happy to be again recognized in this public[...]

    Read more >
+44 203 968 0500
+44 7887 710 950