In trade agreements, it is customary to include a provision that changes to a contract are null and void, unless they are written and signed by or on behalf of both parties. This is called the variation clause and is intended to avoid informal or involuntary oral variations. However, the common law allows for the amendment of a written contract by the mutual consent of both parties, either orally or in writing. This can complicate the position. In the whirlwind of the economy, written agreements sometimes cannot follow trade developments; and when disputes arise, the parties may find that their contracts do not say what they thought or reflect their actual practice. This can be frustrating and create uncertainty – are the parties bound by their initial agreement or has the treaty been amended? In this case, the party resulting from the modification of the contract must demonstrate that there is a clear pattern of conduct that is inconsistent with the terms of the original contract and that is consistent only with the parties` agreement to change those conditions. In other words, a party will not be able to justify a change in behaviour if the parties had acted or acted exactly as they would have done in the absence of such an agreed amendment. It is therefore often very difficult to find that a contract has been altered by the behaviour, so it is wise for the parties to record the changes in writing in order to avoid disputes over the terms of their relationship. Remember that a party that takes only one benefit (not a charge) under the contract is not required to sign.
The waiver is the case where one party is voluntarily subjected to a request from the other party not to insist on the exact method of execution described in the contract. In these circumstances, it can be said that this party has waived its right to exist in this particular way. A waiver may be verbal or written, or even deduced by conduct – so that a party may waive its right (or be taken as a waiver) to invoke a written amendment if the manner in which it acted under the contract has been altered by an oral agreement. It is important that you and the other party, before changing a contract, agree on why you are amending the treaty. There are several reasons why you need to amend a contract, including: An act must be written, that it must be effective and executed and delivered effectively. An act may be either unconditional (i.e. effective immediately) or delivered in trust (i.e. it only comes into force under certain conditions that are met). It is a question of whether an act has been delivered unconditionally or in trust, but the factors to be considered may include: a change in a contract requires planning and must be tailored to the circumstances. Keep in mind that a “simple” contract requires reflection to alternate between the parties. This may be absent when a document has been drafted with the intention of executing it as an act, as a review is not required for a document. In our article “Back to basics – correct signature of your documents,” you will find a summary of what is generally necessary for a document to be executed effectively as a “simple” contract or as an act.
The preferred method will likely depend on the number of changes made to a clause. On the other hand, derogations from the performance of this work are generally carried out according to a method of variation established in the contractual conditions. Construction projects are generally so large and take so long that, from an administrative point of view, it is less difficult for the parties to agree in advance on a method of variation, so there is no need to amend the treaty each time the size of the work changes.