Dear all,

In response to my query on the list some days ago, Jason Neyers
provided the following most helpful information. I am sharing this
with the list with Jason's permission.

Arising from the cases Jason referred to, I have also found a helpful
judgment of Finn J in the Federal Court of Australia, in GEC Marconi
Systems Pty Limited v BHP Information Technology Pty Limited [2003]
FCA 50.

http://www.austlii.edu.au/au/cases/cth/FCA/2003/50.html

At paragraph 222, Finn J concludes that an oral variation is possible,
notwithstanding as a 'no oral variation clause'. He concludes that
parties cannot agree to put it out of their power to agree
subsequently or agree that they will only agree subsequently in a
certain way, thereby varying their agreement. A no oral variation
clause is relevant in considering whether subsequent conduct
constituted a variation however.

While I accept that these are clear authorities, I do feel that their
reasoning on this point beg the question and examine the issue through
the wrong end of the telescope! The practical reasons why a 'no oral
variation clause' are included in contracts still seem both obvious
and sensible to me.

Any comments are of course welcome.

Thanks again to Jason.

Kind regards

Ger

---------- Forwarded message ----------
From: Jason Neyers <jneyers@uwo.ca>
Date: Fri, 30 Jan 2015 19:15:05 +1100
Subject: Re: Collateral Contracts and Variation in Writing only Clauses
To: Gerard Sadlier <gerard.sadlier@gmail.com>

Dear Ger:


This is what Cardozo JA had to say once:

The question would answer itself if it were not for the covenant that
there shall be no waiver or amendment not evidenced by a writing. The
employer sets up this covenant to nullify its oral consent. The
employee asserts that the covenant is nugatory. Those who make a
contract, may unmake it. The clause which forbids a change, may be
changed like any other. The prohibition of oral waiver, may itself be
waived. "Every such agreement is ended by the new one which
contradicts it" (Westchester F. Ins. Co. v. Earle, 33 Mich. 143, 153).
What is excluded by one act, is restored by another. You may put it
out by the door; it is back through the window. Whenever two men
contract, no limitation self-imposed can destroy their power to
contract again

Beatty v. Guggenheim Exploration Co. (1919) 225 NY 380

You might want to look also at his opinion in Imperator Realty
Company, Inc. v. Tull 228 N.Y. 447, 127 N.E. 263 (1920).


On 01/28/15, Gerard Sadlier <gerard.sadlier@gmail.com> wrote:
> Dear all,
>
> I would be grateful for any references to authorities on the following
> hypothetical:
>
> Suppose that in their contract, (the "Original Contract") the parties
> agree that the contract can only be changed or varied (I'm interested
> in either, if in fact there is a difference) in writing, signed by
> specified persons.
>
> In what circumstances could a further contract ("Contract 2") be made
> either (i) orally or (ii) by parties other than those specified
> (assuming that apart from the contractual stipulation in the Original
> Contract the parties to the Contract 2 had authority) or both (i) and
> (ii)?
>
> On principle, it seems to me that Contract 2 could be valid only if:
> 1. It dealt with subject matter substantially different to that
> considered in the Original Contract. Whether any overlap would be
> permissible being a difficult question. or
> 2. Possibly if Contract 2 rescinded the Original Contract and then
> created a wholly new arrangement. (I must say I find this an
> unconvincing way of reading the hypothetical stipulation above but I
> suppose it's arguable.)
>
> There must be many contracts in which such clauses are present but I
> can find no cases on this issue. It seems a matter of practical
> importance, since if enforceable such a clause would significantly
> limit the scope for arguing that collateral contracts had been entered
> into etc.
>
> Any comments welcome.
>
> Kind regards
>
> Ger
>
>
--
--
Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435