Title: The evolution of the non-oral modification clause

Authors: Michele van Eck

Addresses: Department of Private Law, University of Johannesburg, Johannesburg, Republic of South Africa

Abstract: There are diverse approaches to the effectiveness and enforcement of a non-oral modification clause (NOM clause). The positions in Australia, England, the USA (with reference to the State of New York), Singapore, South Africa and that of international instruments are assessed in this article to establish a possible uniformity in approaching NOM clauses. The general approach to NOM clauses limits the contracting parties' ability to modify a written contract orally. Therein, a different approach is suggested where the focus is placed rather on the language utilised in the drafting of the NOM clause to determine its effectiveness and enforcement. Such an approach may, like the position in South Africa, see a harmonisation of the various approaches to support the principle that contracts are ad hoc legislation inter partes.

Keywords: non-oral modification clause; NOM clause; non-variation clause; variation to a contract; oral modifications; drafting of contracts; law and language.

DOI: 10.1504/IJPL.2023.131463

International Journal of Private Law, 2023 Vol.11 No.1, pp.1 - 14

Received: 21 Mar 2022
Accepted: 18 Jan 2023
Published online: 13 Jun 2023 *

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