Second Circuit Considers "No Oral Modification" Clause In Helicopter Contract

Marc L. Antonecchia is a Partner in our New York office.

HIGHLIGHTS:

• Parties to aircraft purchase agreements should recognize that there are potential exceptions to "no oral modification" clauses.
• Conduct that evidences an indisputable mutual departure from the written agreement may constitute a waiver.

The Second Circuit recently issued a summary decision¹ concerning the scope of a "no oral modification" clause in contracts governing the sale of helicopters. The underlying dispute involved three separate helicopter purchase agreements for Oceanic Capital Company Limited ("Oceanic") to purchase three helicopters from Aircraft Services Resales LLC ("Aircraft Services") in July and August 2008. Each agreement provided that any modification was to be made "by an instrument in writing executed subsequent to the date hereof by authorized representatives of both Parties."