Enforceability of Contract Variation: Legal Arguments and Consistency of Legal Authorities

0Running head: CONTRACT LAW
Contract Law
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1Running head: CONTRACT LAW
The legal arguments which parties generally invoke in regard to enforceability of contract
variation:
In commercial contracts, it is important to include certain clauses for the purpose of
making appropriate changes in contract. However, such contract needs to be in the form of
writing and both parties need to sign it. These clauses are termed as variation clause and the
intention of such clause is to prevent the nature of informal variations1. However, under the
provisions of common law, written contracts can be changed with prior consent of the parties
along with mutual agreement on the part of both the parties either orally or in writing.
It is worth mentioning that, variations under common law shall be effective if the
following elements are present. These can be categorized as-
I. There has to be a valid agreement between two parties. A mere notification on the part of
one of the party to another should not be held effective2.
II. There must be supporting documents and consideration in regard to such agreement.
The enforceability of a contract variation can be explained with the help of the case Williams
v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 13. In reference to the case, the main
legal arguments invoked by the parties can be emphasized. The case is related to variation of
contracts, consideration and the rights on the part of third parties. Various arguments are there
upon which the parties may rely can be categorized below:
I. The First Agreement:
1 Purvis, Alan. "An investigative study of road construction contract variations." (2015).
2 Ellingsen, Tore, Tor Jacobson, and Erik L. von Schedvin. "Trade credit: Contract-level evidence contradicts
current theories." (2016).
3 [1991] 1 QB 1.

2Running head: CONTRACT LAW
In this part, the parties can present arguments regarding the fact that, when the bargain
forms a part of the contract by complying with the existing requirements of such contract; then
the concept of First Agreement can be relied upon. However, consideration can be found by the
payment of certain amount4. In this context, the parties must argue that there was an intention on
their part to create legal relationship and the contract must be commercial in nature. The terms
and conditions of the contract must be clear and unambiguous for the purpose of ensuring
certainty. If these elements are taken into consideration, then a proper agreement can be formed
by the parties regarding the fact that the contract was valid.
 The First Variation of Terms:
Consideration may be present in the form of rights, interests, profits or benefits given to one
party as a result of some loss and detriment suffered by another party. This principle was
observed in the case of Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 5545. It is
worthwhile to refer here that, there is a promise on the part of the promisee to do something
which is legally owed by the promisor. Similarly, it was observed in the case of Stilk v Myrick
[1809] EWHC KB J586 that the claimant was working as a captain of the defendant’s ship.
When the ship was on a voyage’ two members of the crew have already left. No replacement was
available to the captain; he promised the remaining sailors that he shall bring the ship to the
destination. In this case, it was held by the Court that the promise on the part of the captain was
not supported by any valid consideration. However, in the case of Williams v Roffey Bros &
Nicholls (Contractors) Ltd [1991] 1 QB 1, it was held by the Court that, there was a valid
variation as it was supported by a consideration under the form of practical benefit for the
4 Klee, Lukas. International construction contract law. John Wiley & Sons, 2018.
5 (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554.
6 [1809] EWHC KB J58.

3Running head: CONTRACT LAW
promisor. In this regard, it is noteworthy to mention here that, the case of Williams v Roffey
Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1 is such that the principle of practical benefit
was constituted in regard to certain underlying components.
 Duress:
In the case of Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1, it was held
that before identifying the nature of practical benefit’ it is important on the part of the Courts to
identify that whether the concept of duress was present or not. Without the existence of duress,
the applicability of practical benefit would have been impossible. In the case of Williams v
Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1, the claimant has faced certain
financial difficulties however; the nature of the contract was valid and complies with the
principle of variation. In this regard, it is worth mentioning that duress is not present in this case
however; consideration and practical benefit could measure the enforceability of the contract to
the large extent7.
 Practical Benefit:
The concept of practical benefit has been highlighted in the case of Williams v Roffey Bros &
Nicholls (Contractors) Ltd [1991] 1 QB 1. In this case, the parties in order to form arguments in
regard to the enforceability of the contract variation shall depend upon various factors. Firstly,
the contract must be performed by the parties within a stipulated period. In case of law of
contract, time is an important essence of contract. In the case of Williams v Roffey Bros &
Nicholls (Contractors) Ltd, there was a contractual obligation on the part of the defendants to
rent the building to the other parties to the contract. As the building was not available on the
7 Hill, Andrew. "Something for Nothing: Explaining Single-Sided Contract Variations." Oxford U. Undergraduate
LJ(2015): 75.