In three cases this year, the English courts have held that terms in contracts - providing that no variation shall be binding unless made in writing and signed by both parties - do not necessarily prevent an informal variation:

  • Globe Motors Inc v TRW Lucas Varity Electric Steering Ltd [2016] EWCA Civ 396: a Court of Appeal decision relating to a long term contract for the supply of automotive industry products. Beatson LJ commented that "in this context … the fact that the parties' contract contains a clause [requiring any variation to be in writing] does not prevent them from later making a new contract varying the contract by an oral agreement or by conduct."
  • MWB Business Exchange Centres Ltd v Rock Advertising [2016] EWCA Civ 553: another Court of Appeal decision relating to an agreement to license office premises.
  • ZVI Construction Co LLC v Notre Dame University (USA) in England [2016] EWHC 1924: a Technology and Construction Court decision about an agreement to develop land.

In all cases, it was held that the parties had varied their agreements by conduct even though this was apparently insufficient according to the terms of the written contracts between them.