Checklist: What to consider when terminating a contract (UK)

Introduction

This checklist provides guidance on the key legal factors to consider when terminating a contractual relationship, both from the perspective of the party giving and the party receiving notice of termination.

This checklist addresses the following steps:

1. Consideration of the grounds upon which a commercial contract may be terminated
2. Procedural and formal requirements for legally effective termination
3. Consequences of termination including post-termination rights and obligations
4. Grounds for challenging termination
5. Consequences of failing to terminate the agreement effectively
6. Other ways in which a commercial agreement may end

This checklist can be used in conjunction with the following How-to guides: How to draft a confidentiality agreement and How to negotiate and draft governing law and court jurisdiction clauses in a commercial agreement and Checklists: Ensuring a contract is valid, What to consider when reviewing a confidentiality agreement and Supplier contracts and unforeseen events.

The checklist is presented as a list of considerations to review and tick off as they are addressed. At the end of the checklist there are explanatory notes to help with the review, corresponding to each relevant step in the checklist.

Scope of checklist

This checklist considers the different grounds on which a commercial agreement may be terminated, such as termination for convenience (without cause), termination for material breach and termination for insolvency. It addresses the various legal requirements with which the terminating party must comply to ensure that termination is legally effective. Additional requirements that may apply to the termination of specific types of contracts, such as employment contracts or consumer credit agreements, fall outside the scope of the checklist. The checklist also briefly considers other ways in which a commercial agreement may come to an end, for example recission, expiry or frustration.

Step 1 – Consideration of the grounds upon which a commercial contract may be terminated

Step 2 – Procedural and formal requirements for legally effective termination

Step 3 – Consequences of termination including post-termination rights and obligations

Step 4 – Grounds for challenging termination

Step 5 – Consequences of failing to terminate the agreement effectively

Step 6 – Other ways in which a commercial agreement may end

Explanatory notes

Legal framework

This checklist covers the potential grounds for termination of a commercial agreement under English law of contract as well as at common law.

Step 1 – Grounds upon which a commercial agreement may be terminated

It is sensible to include express termination rights in a commercial agreement as a court will only imply a right for a party to terminate on reasonable notice where it is necessary to give the agreement business efficacy (and normally where there is no other way for the agreement to end).

1.1 Termination for convenience

A commercial agreement will sometimes include a right of termination for convenience (also known as a right of termination without cause). Whether such a clause is included is a question of negotiation between the parties before signing the agreement. The clause may be one way or mutual, depending on the respective bargaining position of the parties.

There are many reasons why a party may want an option to terminate an agreement early, even without the other party having committed any breach of its obligations, for example if, over time, an agreement proved to be less profitable to a customer than originally anticipated and other suppliers of similar goods or services were able to provide those goods or services more cheaply, the customer may want to switch to that supplier. Another example may be where neither party has breached the agreement but, for whatever reason, the relationship is not working as hoped and it is in a party’s interests to get out of the relationship sooner rather than later.

If a party wishes to terminate an agreement for convenience, care must be taken to do so in accordance with any express requirements set out in the agreement. For example, the agreement will normally provide a specific notice period which must be given before the agreement terminates, such as ’X days’ notice’ or ‘not less than X days’ notice’. There may also be consequences of termination related to a party terminating for convenience, for example, it may not be able to seek a refund of monies paid in advance. The decision as to whether to exercise the right to terminate for convenience will largely be down to commercial factors, such as whether, even if a party cannot obtain a refund, is it still cheaper if they exit the agreement early and go elsewhere instead. Before exiting an agreement early, consider how quickly and easily it may be to onboard a new supplier (or customer) to ensure continuity of business.

1.2 Termination for material breach under express terms of the contract

A commercial agreement will generally contain language stating that one party (or both parties) may terminate the agreement if the other party commits a ‘material breach of the agreement’ (as defined in the agreement) which is either ‘incapable of remedy’ or ‘if capable of remedy has not been remedied within x days of notice of breach being served upon the defaulting party by the non-defaulting party’. Where an agreement contains ‘opportunity to cure’ language, it is critical that, before the non-defaulting party terminates the agreement, the defaulting party is afforded the opportunity to remedy the breach in accordance with the prescribed terms of the agreement. Any purported termination by a party which denies the defaulting party any contractual right afforded to it to attempt to cure the breach may be legally ineffective.

1.3 Termination for repudiatory breach under common law principles

In certain circumstances a breach of contract by a party to a commercial agreement may constitute a repudiatory breach of contract at common law. For example, where a supplier refuses to perform its obligations and abandons the agreement, or a buyer refuses to pay any invoices for the goods or services it has received. This means that a court may determine that the breach is sufficiently serious to entitle the other party to treat the agreement as being at an end (broadly speaking, a breach that is at the very substance of the agreement or goes to the heart of the contract). In such circumstances the innocent (or non-defaulting) party is entitled (although not obliged) to accept the repudiatory breach and to treat the agreement as terminated.

If the non-defaulting party does not treat the agreement as at an end, For example, because it may prefer to see if it can resolve the issues which have arisen so that the parties may resume performance of the agreement, the non-defaulting party may still bring a damages claim against the defaulting party in relation to the harm suffered as a result of the other party’s repudiatory breach of contract. The agreement otherwise remains in place and continues in force.

This is a complex area of law. Whether a breach is sufficiently serious to be a repudiatory breach is a question of fact and the relevant circumstances of the case. If the belief is that the counterparty to an agreement has committed a repudiatory breach of contract, it is recommended to seek advice from suitably qualified counsel before deciding how to proceed.

It is always sensible to include express provisions in an agreement so that the parties can make their own arrangements between them and ensure that the agreement accurately reflect their wishes when it comes to termination, and that it is not left to a court to determine (and costly litigation as a result).

1.4 Termination for insolvency

A commercial agreement may contain a right for one party to terminate if the other party suffers an insolvency event (as defined in the agreement) or provide that an agreement will automatically terminate on either party suffering an insolvency event.

This type of clause is not necessarily standard but may be included on the basis that it is reasonable to expect that a party should not be bound to continue to perform its obligations under an agreement with an insolvent counterparty, which counterparty may not be able to perform its obligations, including payment of fees, or delivery of goods or services. Commercial agreements often define an ‘insolvency event’ in broad terms. The clause will typically state that an ‘insolvency event’ arises where a party is declared bankrupt or insolvent or enters into administration or liquidation etc. It will also include a duty on the party which suffers such an insolvency event to promptly notify the other party in writing within a specified period of the event’s occurrence.

Historically the principle of freedom of contract under English law applied so courts would uphold insolvency termination clauses in a commercial contract if ever challenged by the insolvent company. However, this position has been altered by the Corporate Insolvency and Governance Act 2020 (CIGA), initially as a response to the covid-19 pandemic.

Where CIGA applies, any supplier of ‘essential supplies’ (eg, critical supplies such as gas, electricity, water, IT goods and services, and communications as set out in more detail in CIGA) to an insolvent entity is restricted from terminating the agreement, refusing to supply or making unfavourable changes to the relevant supply agreement once the entity has entered insolvency proceedings. CIGA does not apply to certain categories of entities (mainly financial services entities) because restrictions on actions that can be taken by those entities in insolvency situations as service providers or as customers of third-party suppliers are set out in their own regulatory obligations. Some provisions of CIGA were temporary measures only to help customers experiencing financial difficulties resulting from the pandemic. In case of uncertainty as to whether CIGA applies, seek advice from suitably qualified legal counsel. Note that CIGA does contain provisions enabling suppliers restricted from terminating agreements for insolvency to be paid for the goods and services they supply during the insolvency process.

1.5 Termination for a change of control event

A commercial agreement will often contain a ‘termination for change of control’ clause which gives a party the right to terminate a commercial agreement if the other party is subject to a ‘change of control’ event (as defined in the agreement). For example, a party may not wish to continue to be bound by an agreement if one of its competitors acquires the counterparty, or if the new party is not a party with which the other party wishes to engage (for example, due to their reputation, actions, or other reasons which may not comply with a party’s due diligence requirements and policies, for example, or regulatory requirements).

A ‘change of control’ event may refer, for example, to a change in ownership of the shareholding of a party to the agreement. The clause may also provide that the party subject to the change of control is obliged to notify the other party of the change and the other party may exercise any right of termination in its favour within a prescribed time period. If acting for the party most likely to undergo a change of control, it can sometimes be helpful to specify that the other party can only terminate for a party’s change of control if the change will have a material adverse effect on that party’s ability to perform its obligations under the agreement.

Note also that potential purchasers of a business are wary of any agreements that prohibit (or allow for termination on) change of control as it may mean that, on acquisition, those agreements are at risk of being terminated (and the business being acquired losing its value as it no longer has the benefit of those agreements to be able to transfer them to the purchaser). This is often a red flag during a purchaser’s due diligence process and may impact the purchase price.

1.6 Termination for the occurrence of a force majeure event

Force majeure clauses are commonly used in commercial agreements, and will generally provide that, where a force majeure event persists for more than a certain length of time, one party (or both) may terminate the agreement immediately on written notice to the other party

Force majeure clauses typically provide that a party shall not be treated as being in breach of its obligations where its failure to perform obligations is the result of events outside of its control (which events are normally specified in the clause), and that its obligations to perform may be suspended. Generally, parties to an agreement will not want this situation to continue indefinitely as they will be in a state of limbo during the force majeure event and not clear on when it will end and the potential long-term impact.

There are several issues which require consideration when drafting force majeure clauses and related termination rights. ‘Force majeure’ has no clear meaning or definition under English law. It will normally come down to a matter of interpretation. It is therefore good practice for the agreement to define what is meant by ‘force majeure’ to avoid any uncertainty as to whether a force majeure event has occurred. Parties may:

• define force majeure events in general terms (ie, events beyond the reasonable control of a party);
• include an illustrative list of examples (ie, ‘including, but not limited to,…’); and
• reference an exhaustive list of events (ie, ’means the following only…’).

The parties will also need to agree on the duration of a force majeure event which will trigger a right of termination. The agreed duration will reflect the period that each party is willing to wait for the other party to perform certain of its obligations (often this is around 3 months or so). The parties may also wish to clarify whether:

• a right of termination would be triggered only by the persistence of the force majeure event for a continuous period of time;
• repeated shorter periods should also give rise to a right of termination; and
• an obligation on the party affected by the force majeure event should take steps to mitigate the consequences of the event.

However, before relying on a right to terminate for force majeure, it is important for the parties to analyse whether the circumstances amount to a force majeure event and also the consequences of a force majeure event. All force majeure clauses need to be considered on their specific terms and a thorough risk assessment is required before relying on a contract specific provision like force majeure. For further guidance on assessing and managing the risk of force majeure, see Checklist: Supplier contracts and unforeseen events.

1.7 Multiple grounds for termination

It is possible that more than one ground of termination may be available (which may include one or more of the grounds referred to above at Steps 1.1 to 1.6, as well as other termination rights). For example, a party may have grounds to terminate an agreement for a material breach of the other party and also have a general right to terminate the agreement for convenience. In addition, a party may have the right to terminate for repeated breaches over a given period, for any breach (whether capable of remedy) or for non-payment.

Where more than one ground of termination is available to a party, it is of critical importance that the terminating party relies on the ground of termination which is appropriate to the circumstances (and its strongest available remedy). For example, if a party which regards the other party as being in material breach of an agreement elects to terminate the agreement in reliance on its right of termination for convenience, it may prejudice its ability to recover damages from the other party for its breach of the agreement.

Termination for a party’s breach is a serious measure and not to be taken lightly. Before exercising any right to terminate, consider first whether there may be alternatives to termination, for example, any dispute resolution or escalation process, an amendment to the agreement or if a potential threat of termination may be sufficient to encourage the defaulting party to renegotiate or accept and comply with terms perhaps more satisfactory to the non-defaulting party.

Step 2 – Procedural and formal requirements for legally effective termination

A commercial agreement may set out requirements which must be followed to give legally effective notice of termination. For example, it may specify the person/address on which, or the medium by which, notice should be served. If a party fails to comply with these requirements, the notice of termination may not be legally effective.

2.1 Minimum/specific notice period to be given

Take care to ensure that a party complies precisely with any terms in the agreement which specify minimum or specific notice periods for termination of the agreement. Where a commercial agreement provides for different notice periods for termination in different circumstances, check that the correct notice period is being given for the ground of termination being relied upon. Check whether the right can be exercised only during certain contractual windows, eg, during the final ‘X months’ of the current term of the agreement.

2.2 Notice to be given in writing

Ensure compliance with any express requirements set out in the agreement as to how notice of termination shall be served. Commercial agreements will generally state that notice of termination must be given in writing. It is in the interests of the terminating party to give written notice to make it clear and unequivocal that notice has been given and to set out the terms of such termination, eg, set out the date when the notice period expires and termination is deemed effective, etc. In any event, it is good practice to do so to avoid disputes as to whether notice to terminate has in fact been given.

2.3 Notice to be served on named individual or office

Make sure to comply with any requirements set out in the commercial agreement which specify that notice of termination should be served on a named individual or office. For example, it may state that notice shall be served in writing to the ‘office of the general counsel’ or to a named individual or title holder within an organisation, as well as being copied to other named individuals or title holders. It is critical to ensure compliance with any such requirements when serving notice of termination.

2.4 Other required formalities

If there are any requirements set out in the agreement as to how notice of termination should be served, care should be taken that these requirements are strictly followed. For example, is notice of termination permitted by email or must it be done in writing (excluding email)? In certain circumstances, eg, where a commercial agreement is of sufficiently high value, the terminating party may wish to serve notice of termination by way of recorded delivery of a letter of termination (even if not expressly required) to minimise any risk that the other party may dispute that it has been served with notice of termination.

There are various instances where other formalities are required or may be needed in order to lawfully terminate an agreement. For example:

• it is good practice in any written notice of termination to include reference to the specific clause in the agreement (and, if terminating for breach, a brief description of the grounds for such termination) which gives a party a right of termination and to state the exact date on which it believes the agreement will terminate;
• the other (non-terminating) party may, under the express provisions of the agreement, need to sign an acknowledgement of service, whether by countersigning the notice of termination in a signature box provided or by email acknowledgement (if this is the case, the terminating party may wish to add language to the termination notice before it is sent stating that the notice of termination will be legally effective even in the absence of a countersignature by the receiving party – whether this is effective will depend on what is stated in the notice provisions of the agreement); and
• an agreement may state that notice of termination must be served in writing and not by email (it is important to comply with the precise requirements set out for the giving of notice - failure to do so may create an opportunity for the non-terminating party to challenge the purported termination as unlawful and not binding). Sometimes references to whether email is considered “written” notice under the agreement may be set out in another clause (typically the “interpretation” clause) so make sure to view the agreement carefully before notice is sent to the other party. Often parties will allow notices by email for day-to-day communications but not for more formal communications, such as breach notices, termination notices, or other legal notices as the risk of such notices not being received by the other party (and the potential consequences resulting from such a situation) is too great; is there a dispute resolution or escalation process in the agreement that must first be followed by the parties to try to resolve any potential disputes before the terminating party is able to exercise any contractual (or other) rights or remedies. If so, make sure to follow these steps in accordance with the terms of the agreement, including ensuring any relevant named personnel are involved and any timescales to enable possible resolution are followed.

Step 3 – Consequences of termination including post-termination rights and obligations

3.1 Survivability of specific contract clauses

Where a commercial agreement is terminated, the parties’ primary rights and obligations under the agreement will normally end on the date of termination. However, a commercial agreement will usually contain language which expressly sets out which clauses of the agreement will remain in force even after its termination and/or expiry. Such clauses are referred to as ‘surviving’ termination of the agreement.

Sometimes an agreement will expressly name those clauses which survive termination, eg, clauses relating to confidentiality, intellectual property rights, indemnities and data protection related duties. In other cases, the agreement may contain more generic language such as, ‘all Clauses, the survival of which is necessary for the interpretation or enforcement of this Agreement or to give effect to its terms or as may be expressed to survive or by their nature survive, shall survive the termination or expiry (for whatever reason) of this Agreement and shall continue in accordance with their terms.’.

Often a commercial agreement will also contain language stating the termination of the agreement will not affect the rights, obligations and liabilities of the parties which have arisen prior to termination of the agreement, including the right to bring an action for damages for breach of contract. This is in order to preserve any rights that either party had (but may not necessarily be aware of) at the date of termination.

3.2 Transitional arrangements and post-termination restrictions

Depending on the nature of the agreement, commercial agreements sometimes contain transitional (or exit) arrangements. These are obligations which must be followed by either or both parties during the termination notice period, or upon termination, to bring the arrangement to an orderly end. For example, where the licensor of a merchandising agreement terminates the agreement, the licensee may be granted the right to continue to sell existing branded stocks in its possession or control within a specified time period, and/or return to the licensor branded stock which remains unsold by termination date of the agreement. This is often referred to as a ‘sell-off period’.

Sometimes more detailed exit arrangements are set out in the agreement, for example, where it is necessary for a supplier to assist the customer for an efficient handover of any services to the customer or to an incoming supplier to ensure business continuity for the customer. This is common where the customer is using systems upon which it relies for its operations, such as payroll, HR, and IT support.

In addition, any post-termination obligations must be observed for the duration specified in the agreement (such as non-compete and non-solicit clauses), otherwise this may give rise to an action for breach of contract, notwithstanding that the agreement itself has been terminated.

3.3. Damages claims

In addition, to terminating an agreement for breach of contract, the terminating party may also want to bring a damages claim against the defaulting party.

If contemplating this action, it is advisable to take advice before proceeding. In particular, you may wish seek advice on:

• the potential available grounds for termination, eg, a breach which the agreement expressly entitles the non-defaulting party to terminate, or in reliance on a repudiatory breach which triggers a right of termination at common law; and
• the merits, and potential value, of any damages claim, as well as the likelihood of a damages claim being successful, under each possible ground for termination.

Step 4 – Grounds for challenging termination

It is possible that a party upon whom a notice of termination of agreement is served may challenge the validity of such termination. In particular, the receiving party may assert that:

• the ground (or grounds) for termination relied upon has not, in fact, been established;
• the terminating party has failed to comply with procedural and/or formal requirements for termination prescribed in the agreement; and/or
• the termination has not been exercised in a timely manner and the ground can no longer be relied upon.

4.1 Ground relied upon not established

In some cases, it may be straightforward for the receiving party to determine that the ground for termination relied on is not, in fact, available to the terminating party. For example, a party may purport to terminate an agreement for convenience when no such right exists under the agreement. However, in other cases the question of whether the ground is, in fact, established may be far from clear. For example, where a party terminates an agreement for ‘material breach’ the question of whether a material breach has in fact occurred may be open to debate.

4.2 Failure to comply with procedural and/or formal requirements

It is important to comply strictly with any procedural and/or formal requirements of the agreement with respect to termination and notices of termination. Any failure to serve notice to terminate in accordance with the express requirements set out in the agreement carries risks for the terminating party. In particular, the receiving party may assert that the notice of termination is unlawful and not binding, and that the agreement continues in force in accordance with its terms. There is also a risk that in certain circumstances the purported termination of the agreement is itself a repudiatory breach of contract by the party which serves such notice (see Steps 1.3 and 5.2 for further discussion about repudiatory breaches).

4.3 Delay in exercise of right of termination

Certain rights of termination may only be available for limited periods of time. For example, a party may have a right to terminate an agreement because the other party has been subject to a ‘change of control’ event. It is quite common for this right to be time limited, for example, to a period of six or twelve months from receipt of notice of the change of control event taking place. If a party purports to terminate an agreement after this time limit has expired, this may be unlawful and non-binding.

The rationale is that the party receiving the notice should be given the opportunity to terminate the agreement if, for example, it does not wish to work with the new owners of the non-terminating party. However, the non-terminating party will normally seek to limit the time period during which a right of termination is available to the other party so that there is a degree of certainty for both parties that the agreement will continue. Termination rights for ‘Change of control’ are usually limited to a period of somewhere between six and twelve months (see also Step 1.5 for further discussion about termination for change of control).

In addition, take care to check if the agreement contains a ‘non-waiver’ clause; this is often included as an express provision so that if a party (whether by act or omission) is deemed to have waived a breach by the other party, it is not deemed to have waived its rights more broadly or in respect of any other rights.

Step 5 – Consequences of failing to terminate the agreement effectively

5.1 Agreement remains in force

Where a party’s attempt to terminate an agreement is unlawful, the agreement will remain in force. For example, where a party purports to terminate an agreement for convenience without giving the notice period expressly provided for in the agreement, then the termination will not be legally effective, and the agreement will remain in effect. This means that the parties will continue to be bound to perform their respective obligations under the agreement; the would-be terminating party will be required to issue a fresh notice of termination in accordance with the express terms of the agreement to bring the agreement to an end.

5.2 Purported termination may itself constitute a repudiatory breach

In certain circumstances an act of purported termination may itself constitute a repudiatory breach of the agreement. In particular, where a party to a commercial agreement gives notice of termination of the agreement without having a valid basis for doing so, the receiving party may, depending on the circumstances, be entitled to treat this action as amounting to an unjustified refusal to continue to perform the agreement. In such circumstances, the receiving party may accept the repudiatory act, treat the agreement as being at an end, and bring a claim for damages against the other party for unlawful termination. For example, if a party purports to terminate an agreement on the basis of material breach where in fact it is not entitled to do so, there is a risk that the other party may treat the original terminating party as having unlawfully terminated the agreement.

5.3 Consider whether additional legal advice is necessary

In some cases, the agreement may be very clear as to the grounds under which an agreement may be terminated, and the requirements with which each party must comply when doing so may be straightforward. For example, an agreement may contain an express right for either party to terminate at any time for convenience subject to giving a specified minimum period of notice in writing. However, in other cases the question of whether grounds for termination have arisen may be less obvious, eg, where a party wishes to terminate an agreement in reliance on a material breach by the other party of its obligations under the agreement; it may be arguable as to whether the breach is ‘material’ for example or, even if it is, whether the other party has attempted to remedy the breach (in accordance with any remedy period in the agreement) but the terminating party considers that they have not sufficiently done so.

If there are any concerns or doubt as to whether a party is entitled to terminate an agreement, it is recommended to obtain legal advice from suitably qualified legal counsel before proceeding.

Step 6 – Other ways in which a commercial agreement may end

6.1 Recission

In certain circumstances a party may be entitled to rescind a commercial agreement, eg, where there has been a serious defect in the formation of the agreement, such as misrepresentation. Recission is not available in certain circumstances, for example where the agreement has been affirmed by the innocent party.

The effect of rescission is to set the agreement aside (ie, for it to be treated as it was never made in the first place); the parties are restored to the position they were in before the agreement was made. If a party believes that it may have grounds to rescind a commercial agreement it is recommended to seek advice from suitably qualified counsel before doing so.

6.2 Condition precedent not fulfilled

The parties to a commercial agreement may agree that the agreement will not have legal effect unless and until a particular event takes place. For example, a party may wish to insert a clause into a commercial agreement that the agreement will enter into legal effect only in the event that it obtains regulatory approval necessary to enable to it to perform the agreement, eg, regulatory approval for commercialisation of a new medicine, or a licence to operate a new betting company. Such a clause is often referred to as a ‘condition precedent’. Where the parties wish to include a condition precedent, to minimise the risk of uncertainty (and the agreement being deemed invalid due to lack of contract formalities), make sure to include sufficient detail as to how the condition precedent should apply, eg, whether it must be fulfilled by an agreed specified date, and precise details of the condition that must be met.

6.3 Expiry

The parties to a commercial agreement may want the agreement to expire (terminate automatically) at the end of a fixed period. If so, it is good practice for an express provision to this effect to be included in the agreement rather than risking whether it will be inferred from reference to a fixed term. It can be common for parties to agree that, unless either party serves notice within a certain time period from the end of the initial term, the term of an agreement will automatically renew or be extended for a certain period of time (without notice being needed from either party). Alternatively, that renewal or extension may be subject to certain conditions being met during the original term for it to renew (for example, hitting specified performance targets or sales figures). Again, where this is the parties’ intention it is good practice for the agreement to include express provisions to this effect. If, as a result of an automatic renewal, this means that a party is then committed to paying certain fees (or fees automatically increase), it would be sensible for the paying party to insist on being provided with notice of renewal and any proposed increases to the fees so as to enable it the opportunity to serve notice of termination before the renewal takes effect.

Note that any obligations which are expressed to survive termination (see Step 3.1 and 3.2) will continue in force for whatever period is expressly set out in the agreement.

6.4 Frustration

The common law doctrine of frustration applies when a supervening, unforeseen event changes the circumstances of performance of the agreement so significantly that, either the agreement becomes impossible to perform, or obligations under the agreement are completely changed from those originally intended on entering the agreement. Where frustration applies, the agreement is considered terminated, and the parties do not need to perform any future obligations (although any obligations arising prior to the event of frustration will need to be performed, and any rights accrued prior to the event of frustration are not affected). The test threshold for the doctrine of frustration is high however and applied and assessed against the particular facts of the matter. Courts generally give narrow interpretation to the doctrine; obtaining legal advice on whether frustration applies is therefore strongly recommended.

Additional Resources

Related Lexology Pro Content

How-to guides:

How to draft a confidentiality agreement 
How to negotiate and draft governing law and court jurisdiction clauses in a commercial agreement

Checklists:

Ensuring a contract is valid 
What to consider when reviewing a confidentiality agreement 
Supplier contracts and unforeseen events

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