This case reminds us that standard comprehensive contractual clauses cannot necessarily exclude all claims arising from a number of circumstances once a contract has been signed. Careful preparation is required to accurately reflect the true intentions of the parties. The uncertainty created by ill-thought-out and incomplete contractual clauses can be considerable. Ultimately, the effect of an entire agreement clause will be a matter of interpretation based on the facts and circumstances of a particular case, as well as on the intent of the parties. A full contractual clause should therefore no longer be considered a standard boiler plate clause. It is essential that these agreements examine the effects of a comprehensive contractual clause and adapt the development of these clauses to determine the intended purpose. Even where a full contractual clause explicitly refers to previous assurances, the courts found in AXA Sun Life Services plc/Campbel Martin Ltd that liability for misrepresentation is not excluded2. Instead, clear words are needed to exclude misrepresented people and often a whole agreement clause will not have that effect. The details will therefore be being worked out. However, in the recent case of NF Footbal Investments Ltd and another v NFCC Group Holdings Ltd and another3, the High Court found that a full contractual clause contained in a share purchase agreement consisting solely of a full declaration of contract (i.e., no wording implicated dependence or exclusion from liability) excluded claims of misrepresentation.
The decision in NF Footbal is unusual and can be distinguished from the Axa Sun Life case on its facts. The Master in NF Footbal took note of Rix LJ`s decision in Axa Sun Life that an exclusion for misrepresentation must be clearly indicated and that this can be obtained by a non-representation clause or a non-resistance clause, but held that the question of whether a misrepresentation could be excluded depended very heavily on the context and design of the clause in question. Entire contractual clauses are standard or „boilerplate“ terms that are often used in contractual documents to confirm that the document in question covers the entire agreement between the parties. A typical „comprehensive agreement“ clause will say that a written contract containing a clause stating that the letter fully contains the terms on which the parties have agreed cannot be rebutted or supplemented by evidence of previous statements or agreements. However, such statements or agreements can be used to interpret the letter. While a full agreement clause can provide very convincing evidence of the parties` intent that a written document contained the entire agreement between the parties, it will ultimately be a question of whether the document actually contains the entire agreement.6