UK: Oral Variations To Contracts May Be İnvalid İf Contract Requires Changes To Be İn Writing

Last Updated: 1 June 2018
Article by Fiona Beal

The UK's highest court has upheld a provision in a contract that required any changes to the contract to be made in writing.

This meant that the parties were not able to change their contract by verbal agreement.

Those responsible for managing contracts within a business need to be familiar with the process contained in each contract for variation and ensure it is followed.


The case concerned a licence of serviced offices in central London.  The tenant owed more than £12,000 in rent arrears.

The tenant claimed that it had reached an oral agreement with the licensor on the terms on which those arrears would be repaid.

In the ensuing dispute, the licensor relied on this provision in the contract:
"All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect."

This provision is known as a "no oral modification" clause.

The court's decision

The Supreme Court said that the law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation.

The effect of a "no oral modification" clause is that verbal changes to a contract will be invalid.

What are the risks to contracting parties from this decision?

Imagine you have a supply contract which contains a "no oral modification" clause.

The contract provides that the goods will be delivered within 14 days of order acceptance. A customer phones up and asks if the delivery can be made within 7 days instead.  The supplier's representative says that will be fine.  The customer arranges an on-sale on the basis of this.

You know what's coming ...  The goods arrive late and the customer loses its on-sale deal.

As a result of this case, it will be open to the supplier to argue that the oral variation was invalid and that the customer therefore has no claim against it.

There are potential protections available where one party (party A) has detrimentally relied on informal promises made by the other party (party B) about varying the contract.

But the court has set a fairly high bar for those protections to apply.  It said:

  • there would have to be some words or conduct from party B unequivocally representing that the change was valid even though it was being made informally; and
  • something more would be required for this purpose than party B's informal promise.

It remains to be seen what kind of words or conduct would be enough to "override" non-compliance with a "no oral modification" clause.   This point wasn't elaborated on in the case.

What should businesses be doing?

Contracts tend to contain "no oral modification" clauses in the small print at the end.  No-one usually gives them more than a passing glance.  This is likely to change.

Existing contracts

If contracting parties have taken the trouble to include a formal process for making changes to your contract, they will need to comply with it.   The person responsible for managing the contract is best placed to do this.

New contracts

For contacts under negotiation, the parties will want to weigh up the pros and cons of including such a provision.

The pros include certainty (there's written evidence of a change that both parties have signed up to which should reduce the risk of disputes) and control (the contract can specify who has to sign variations and make sure that's someone with the appropriate level of authority).

As a matter of good business management, having all changes in writing will enable anyone in the business to get a handle on the current agreed terms.

On the other hand, "no oral modification" clauses could be seen as inflexible.  In a fast paced commercial environment, a business might not have time to get every last detail of a change put into writing and signed off by a director.

The answer to this is to draft the clause so that it fits the business requirements for that particular contract.

  • If the clause requires variations to be in writing, could "writing" include emails?
  • If so, how would the requirements for "signature" work?
  • Who should be authorised to agree/sign the variations?  It may be possible to provide for an authorised signatory below board level for some types of changes.


Contract variation clauses have often been relegated to the "small print at the back of the contract" section.  Following this case, those drafting and negotiating contracts will want to put some thought into how those clauses are going to work in practice – and then make sure that's communicated to those responsible for managing the contract on a day to day basis. For further advice, please contact your usual Brodies contact.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Fenwick Elliott LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Fenwick Elliott LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions