Any Amendment Must Be In Writing, Signed By The Parties

Sometimes Contracts Quite Literally Do Not Mean What They Say

The English Court of Appeal recently held that an express clause in a contract requiring that any amendment be in writing and signed by the parties does not preclude oral or unsigned amendments to the contract. In holding that an oral amendment could be effective notwithstanding an "anti-oral amendment" clause, the Court of Appeal settled divergent English case law on the point, and provided persuasive authority for a similar result in Canada.

The result is important not only for alleged oral amendments in the face of clauses requiring amendments in writing signed by the parties, but also for the relatively common practice of contractual amendment by exchange of email. The implications of the decision may be of particular importance on summary judgment motions, where the responding party asserts an alleged oral amendment in the face of a contractual provision prohibiting such a form of amendment.