In our previous article on entire agreement clauses we highlighted the importance of clear drafting and the need to give great importance to this very often overlooked boiler plate clause.

·         Understand the various elements of the typical entire agreement clause, what each element is intended to achieve and how they interact with each other. As we have seen in the previous article, an entire agreement clause would need to satisfy the reasonableness test, exclude implied terms, address set-off.

·         Make sure that when you draft or negotiate an agreement you use good wording for excluding liability for misrepresentation and you do not rely on an entire agreement statement to prevent liability for misrepresentation.

·         Remember that it may now be argued that an express exclusion of implied terms excludes terms that would otherwise be implied for reasons of business efficacy.

·         Note that express wording still seems to be required before an entire agreement statement will prevent terms from being implied to reflect trade custom or usage, or the parties' previous course of dealings. If you wish to exclude implied terms, we recommend you deal with this elsewhere in the agreement, rather than in the entire agreement clause.

·         In order for the entire agreement clause to satisfy the reasonableness requirement of the Unfair Contract Terms Act (UCTA):

o    Entire agreement statements constitute exclusions of liability for breach of contract.

o    A one-sided set-off clause is likely to fail the UCTA reasonableness test, particularly if no reason is given for making the clause one-sided.

o    A conclusive evidence clause is likely to satisfy the UCTA reasonableness test, provided the other party can challenge a manifest error.