1 Merger clauses are also referred to as “integration clauses” or “full contractual clauses”. The typical text of such a clause is as follows: if, for any reason, the previous agreement is not explicitly included, this prior agreement may, in certain circumstances, lead to a legally binding obligation, notwithstanding the fact that the treaty contains a full contractual clause. This is due to the doctrine of waiver by agreement, which was recently investigated in relation to entire contractual terms in Mears Ltd v Shoreline Housing Partnership Ltd3. However, there are many restrictions on the effectiveness of entire contractual clauses. I came across this kind of clause and found that it was quite common. Mears began working for the owner six months before the contract was signed. Mears` labour cost calculations were based on a price list different from the formula of the signed contract. Subsequently, it turned out that the price list did not work and that the parties agreed on a new composite code system. Mears did the billing and was paid according to the new composite code.
In addition, the parties could reasonably verify whether there is relevant pre-contractual conduct or a pre-contractual habit between the parties that could be excluded by a full contractual term. Consider the scenario in which a long-term contract is renewed and a “modified” or “adapted” agreement is signed by the parties. If, in the course of the performance of this contract, an accepted practice has developed that does not meet its strict conditions (for example. B invoicing after 30 days if the contract contains 14 days), but the adapted contract is not amended to reflect it and remains in its original form, the parties have probably excluded their right to invoke this previous conduct. Issuing invoices after 30 days would now be a violation as a result of the newly defined agreement. The parties must carefully evaluate the inclusion of a full contractual clause, both when concluding new contracts and when modifying or recasting existing contracts. The question is not whether two separate agreements on the same case can be concluded at exactly the same time. .