I have decided to write a post on the applicability of the knowledge you get while studying at UOL LLB in real life.
I have to repeat that I am lawyer already and work as such but I do not have a QLD in the English law and I am studying for this degree in order to understand and apply English contract law solutions for my current project, where many contracts are generated on a daily basis and almost all of them are, by the selection of the parties, governed by the substantive laws of England.
As I wrote before, my studies got a bit overextended due to my own poor time-management skills. However, even being not so productive as required by the study plan, I gained some knowledge of the English law of contracts, enough to understand the basics and to help the business I am employed by.
As an in-house contract lawyer I may be approached by other departments in my employer’s company with various concerns about some real life situations and a need for an opinion, advice, an idea, whatever, which in the minds of those asking, has a prefix “legal”.
For instance, this Thursday, I received an email asking for a legal opinion on what are our rights, as clients, under the services contract, to complain about the level of the quality of the service. There is a contract for services of provision of office space and accommodation in a remote area. Our guys there found a lot of defects, for instance, broken locks, missing equipment, non-functioning water supply in some of the rooms, etc.
And the contract is silent on what is the level of service to be like – no parameters at all. So what to tell the service provider? What are the legal grounds for the quality of service that we are contractually entitled to? The contract is governed by the English law. Of course, one can say, “hey, if there is nothing, it means that the service just should be normal one, so that I can get what I pay for”. This is very true. But what are the legal grounds for this statement? Here is when the knowledge gained from the UOL LLB course comes into play.
At first I thought for a moment about exclusion clauses, and how they are digested in the common law cases, like, for instance, in Karsales (Harrow) Ltd. v. Wallis,  1 W.L.R. 936, where the doctrine of fundamental breach was proclaimed (albeit for a short time).
Of course, this was not exactly my case but it was the starting point in my head. The idea in Karsales, that the car which is incapable of self-propulsion is not a car but something else thus making the supplier in breach of contract, reminded me that this is an upper threshold for the quality of what you are getting. If something you are given is so bad that it is not what you expected to get than there is a serious breach.
Right then, but in my case we are not yet talking about that magnitude of breach, we want to solve the problem, not to create one by starting the litigation. And more important, the term of the contract is not there at all, i.e. this is clearly an implication of term area which I should think of. What would be of help here? Implication of term by custom? Unlikely. This is just a contract ad-hoc, not something like lease or charterparty where some set rules exist “in the industry”. Implication in fact? The Moorcock test and officious bystander test? Hm, looks like it although these ones are implied by courts. And we are, thankfully, far away from litigation yet. But these are good authorities and I should keep them in mind.
I then shifted my thoughts to the actual statutory controls which would better apply for my situation. Of course I thought about the Unfair Contract Terms Act 1977 first.
I jumped to Section 2 of UCTA where I found the following provisions in Section 3, 2 (b) “the other cannot by reference to any contract term claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him”. I thought, “aha, here you are, the requirement of reasonableness, you are my standard of quality in this case”.
But then I recalled, “wait, there is a trap in UCTA for the voluntary choice of law clauses”. Indeed, Section 27 (1) killed my hopes, stating that “Where the law applicable to a contract is the law of any part of the United Kingdom only by choice of the parties (and apart from that choice would be the law of some country outside the United Kingdom) sections 2 to 7 and 16 to 21 of this Act do not operate” – a dead end.
OK, what’s next? The statutory controls of terms are not restricted to UCTA only. There is more, like the Supply of Goods and Services Act 1982. Mind that I have to again consider the tricky provisions of Section 27 (1) of UCTA in terms of their drastic effect on the SGSA, because UCTA’s section 7 deals with some of the terms under SGSA – which are excluded in my case due to the said Section 27 (1) – but as far as I understood the wording in UCTA, SGSA’s section 13 is not under the invalidation force of UCTA.
My head really starts to hurt at this point. If there is a statute in the UK law system which is really badly drafted and quite incomprehensible it definitely is UCTA. I also have to keep in mind that if the SGSA won’t apply for something i missed in the relations between UCTA/SGSA i will have to refer to the case law but for now, at this point of development of the events the actual text of the contract and my findings in SGSA will suffice.
The SGSA has section 13 in its Part II, which reads: “In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.” So, here is the reasonableness again. And this Act is silent on being not applicable to the parties who make the law of England to govern their contract only through their choice and not because they are inside the UK.
OK then, basing on the above ideas and what I read in the actual contract, I was ready to advise the internal client that unfortunately, his contract is what he has and the only standard of quality of the service to be provided is the “reasonable” standard. And what is reasonable is very fact specific in each situation. Thus, although, there is a Punch List with detected defects prepared by us, as a client, showing not only the defects but the actions to be taken by the supplier to rectify those defects I had to advise that it will be for the supplier of the service to decide how exactly will these defects be remedied. For instance, if you want a new desk instead of the existing but broken one, the supplier can just repair the old one and state that the desk is fine. And there is not much that you can do because the contract is silent on the standard of quality applicable to the services and in its’ tricky way the “strict interpretation rule of the contract” is back in the game again. If something was not promised or what was promised was not clearly defined as to the quality – you can only have something reasonable at best. Not the first class. Even if you pay quite a lot. So, we should be more specific next time and for now we can issue the notice with Punch List instructing the supplier to rectify the defects but we have to keep in mind that the way the rectification will be done is not what our idea of the rectification may be.
This is how your knowledge works in real life. At least in my case. Not so clear and nice as in the textbook, and very often there is no one to ask for help and the textbooks or even the all-mighty Chitty on Contracts may be not so clear or the provision of the statute you found is not applicable to the situation and you are lucky if you find it before sending your opinion to the outer world.
However without the textbooks and the efforts during your studying, including some frustrating experiences too, you would never get to this point of view which is called “legal” or “weird” – guess this one depends on what side is yours.
Konstantin is studying for the University of London Bachelor of Laws degree by distance learning through the University of London International Programmes.