Case summary:

Parties reached an oral agreement for refurbishment works. There was a written list of items of work to be carried out and an estimate. The client disputed the final bill alleging many additional items were part of the original agreement. As the contract was partly oral the court had difficulty in assessing what was included in the original agreement. The Court of Appeal confirmed that when construing a written contract the court cannot look at subsequent conduct, but must decipher the intention of the parties from the terms of the contract. However, when an agreement is partly oral, subsequent conduct can be examined to see if it assists in determining the parties’ original intentions.

Comment:

Oral and partly oral contracts lead to greater uncertainty and are best avoided. If not, then subsequent actions by the parties can be admitted in evidence to help the court determine what was originally agreed.

Brian Royle Maggs (T/A BM Builders) v Marsh and Marsh Jewellery Co Ltd (7/7/2006)