Several colleges have increased enrollment and reaped financial gains from using Rize Education’s courses in high-demand fields, largely overcoming faculty concerns about loss of control.
University buys assets of publicly traded Zovio to bring management of its roughly 28,000 online students in-house, citing online program management’s “inherent conflict.” Glad you finally noticed, critics say.
Two experts discuss the digital divide (including for adjuncts), the importance of training and how to ensure online education is a force for equity, not a deterrent to it.
Instructors’ awareness and use of open educational resources and their recognition of the efficacy of digital texts rose sharply this year, an annual survey finds.
As other public institutions seek to expand their offerings for place-bound adult learners, the formal end of the homegrown eVersity offers some lessons.
A Joint Publication by Asia Society and OECD
Educators and education systems worldwide are reassessing the knowledge, skills, and dispositions students need for success in today's rapidly changing and complex world. In a remarkable moment of global consensus, the member states of both the United Nations (UN), through its adoption of the Sustainable Development Goals (SDGs) in 2015, and the Organisation for Economic Co-operation and Development (OECD), through its Programme for International Student Assessment (PISA) in 2018, prioritized education for global citizenship and global competence.
The OECD and the Center for Global Education at Asia Society have worked with academics, educators, and stakeholders in the global education field over several years to define global competence for primary and secondary education. The Center also has extensive experience supporting educators to integrate global competence into their teaching.
A joint publication from both organizations, entitled Teaching for Global Competence in a Rapidly Changing World, sets forward a new framework for global competence developed by OECD, which aligns closely with the definition developed by the Center for Global Education, and provides practical guidance and examples of how educators can embed global competence into their existing curriculum, instruction, and assessment.
Both the Organisation for Economic Co-operation and Development (OECD) and the Center for Global Education at Asia Society have identified four key components of global competence. Globally competent youth:
- investigate the world beyond their immediate environment by examining issues of local, global, and cultural significance;
- recognize, understand, and appreciate the perspectives and world views of others;
- communicate ideas with diverse audiences by engaging in open, appropriate, and effective interactions across cultures; and
- take action for collective well-being and sustainable development both locally and globally.
The definition undergirds the global competence assessment in the 2018 PISA test, and it also provides a roadmap for educators and education systems to integrate global competence into their teaching.
Implications for Educators
- Educating for global competence is an accessible, practical approach that is not beyond the reach of the average teacher. As the myriad examples in the publication show, this type of teaching is practiced across all age groups and subject areas in countries all around the world.
- Students gain global competence by practicing skill development in the classroom and applying their learning to real-world topics. Although reading textbooks, listening to lectures, and memorization have their place in learning, they must be paired with more active learning to develop global competence.
- Teaching for global competence does not require a new curriculum. It requires combining instructional strategies for active learning with global issues and weaving them into the existing curriculum.
- Instructional strategies include structured debates, organized discussions, learning from current events, learning from play, service learning, and project-based learning.
Implications for Education Systems
- To spread global competence beyond individual teachers and their classrooms, education systems must leverage teachers as advocates and ambassadors, advance whole-school engagement strategies, and support innovative school leaders.
- Professional development for educators is the key to scaling global competence. To reach every student—especially the most marginalized—developing the capacity of educators to teach for global competence requires systematic professional learning.
- The results from PISA 2018 can inform potential changes in policy to strengthen education for global competence, including building the capacity of the teaching force to do so.
- Resources for developing global competence at scale exist. Organizations including the Center for Global Education are developing professional development opportunities and collaborative platforms worldwide.
- The challenge is to provide access to professional learning for all teachers in order to transform their teaching, their classrooms, their schools—and, ultimately, each and every one of their students.
Primary school educators have expressed challenges over the mother-tongue teaching policy while some have also lauded the development.
Recall that the Federal Executive Council on Wednesday approved a new national language policy for primary schools.
The policy makes the mother-tongue a compulsory medium of instruction from primary one to six.
But the proprietress of De Joyland School, Yaba, Mrs Abimbola Osagie, lamented that it would be difficult for teachers to teach learners in mother-tongues.
‘‘I must say that this is a difficult task. How many teachers can speak their local language? How many parents can speak their mother-tongue let alone speak it to their children? How many of the pupils understand the local language of the immediate community where they reside?
‘‘This policy will make teaching and learning difficult for both teachers and learners.
‘‘There are better beneficial policies that they can come up with definitely not this.
She appealed to the government to review the policy.
‘‘The policy should be backed up with research-based and evidence-based proven results as this will affect the entire nation.
‘‘The government should research on how many teachers can speak the local language of the community they reside in or how many teachers can speak their mother-tongue.
‘‘I appeal to the government to have a review of this policy. If they don’t want it to just be on paper.’’
Director of Studies, Champions International School, Magboro, Ogun State, Mr Fola Adekeye, said, ‘‘If primary 1-6 learners are raised compulsorily on the diet of dominant native language, in which language diet will they continue in secondary schools? Obviously, the idea is structurally blind.’’
On her part, the Head of School, Juniper HillSchool, Lagos, Mrs Ajibike Bakare, argued that the ability to speak English properly was not a measure of intelligence.
‘‘The truth is Prof. Babs Fafunwa of blessed memory made this suggestion some years ago. The rationale at the time was two-pronged, children were observed to learn better when the language of instruction was the mother tongue and secondly, the preservation of our Indigenous languages.
‘‘I think the federal government is hurry on making sure children do not lose a sense of their identity, hence this new directive. We look to them and Federal government schools to show other schools how to properly implement this.’’
Hakeem Adeniyan, a teacher of Mathematics in Yoruba Language, added that ‘‘If FG wants to actualise it, they should approach educationalists that can develop instructional books in the indigenous languages. They can start with Yoruba, Hausa, Igbo.
While speaking on the implication of adopting mother-tongue in teaching, he said, ‘‘It will not affect teaching and learning. It will be introduced gradually and not suddenly.’’
After a student in his classroom had yet another outburst, Tyler Wright couldn't bear to see him get written up again. Wright, then a student teacher at a Charleston elementary school, led the child out to the hallway for a chat.
Within minutes, the student started crying.
"He was telling me that he really doesn’t get to see his dad and stuff like that," Wright said. "That his dad was supposed to come see him but never did. At the end of the day, that was the root cause for the outbursts, because the child was angry."
Wright told him that he grew up in a similar situation, but he still paid attention the best he could, despite what was going on at home. The conversation was all it took, Wright said, for the student to open up and Improve his behavior.
Wright became a full-time teacher at Stono Park Elementary in January, thanks to a program in Charleston aimed at making the teaching profession more accessible to Black men, who are vastly underrepresented in classrooms in South Carolina and around the United States.
Just 7% of America’s public school teachers were Black during the 2017-18 school year although Black students make up 15% of the student population, according to the most accurate available data from the National Center for Education Statistics.
Their absence in classrooms is deeply felt, especially in states like South Carolina, where almost a fifth of students are Black and Black males account for less than 3% of teachers.
Having teachers who reflect the identity of their students can foster connections between teachers and students — and help avoid the kind of misinterpretation of behavior that can contribute to disparities in discipline for Black students, experts say. Research shows that Black teachers can lead to improved academic performance and higher graduation rates for Black students.
At a time of teacher shortages in South Carolina and around the country, the presence of Black teachers also can make it more likely for Black students to pursue careers in education themselves.
A South Carolina program, Men of CHS Teach, places new teachers in elementary classrooms to help males get teaching licenses. The program hopes to hire 20 male teachers of color within five years.
"The issue starts fairly young," said Eric Duncan, a member of the policy team at the Education Trust, a nonprofit advocacy organization. "They get negative impressions of school because they are traditionally overdisciplined or misidentified in terms of behavior challenges, when they may have some other issues or challenges that should be addressed in a more culturally proficient way."
There are other barriers to the teaching for Black men. Many come from low-income families and face pressure to find higher-paying jobs, and there are license requirements that were deliberately created to prevent people of color from becoming teachers, Duncan said.
The program in Charleston, Men of CHS Teach, is a partnership between the University of South Carolina and the Charleston County School District. It places new teachers in elementary classrooms even if they haven’t participated in a student teacher program and creates an alternative pathway for them to get teaching licenses.
CCSD decided to focus on recruiting elementary teachers because it’s typically difficult to fill those positions with men, and research shows that if Black students have a teacher of color in elementary school, they’re less likely to drop out of high school and more likely to consider college. For Black boys of low-income backgrounds, those effects are even greater.
Program organizers hope to hire 20 male teachers of color within the next five years. Close to half of the district’s student population is non-white.
IN MISSISSIPPI, OCEAN SPRINGS SCHOOL DISTRICT SUPERINTENDENT ANNOUNCES RETIREMENT
Wright was one of the program’s first inductees. He decided he wanted to teach after working as a student concerns specialist at one of the district’s high schools. A few years later, Wright is leading a classroom of his own.
The South Carolina districts that have seen the greatest increase in Black male teachers in accurate years are Charleston, York 3, Richland 1 and Aiken, with a net total of almost 80 new hires from 2017 to 2021. However, they still have a small share of Black male teachers overall.
Statewide, the racial demographics of teachers barely changed between 2016 and 2021, according to an analysis of state teacher workforce data.
The program in Charleston was partially inspired by Call Me MiSTER, a Clemson University program that aims to recruit, train and certify men of color to become elementary school teachers in South Carolina.
Mark Joseph, the program’s director, said they’ve seen a decrease in applicants in accurate years and have had to put more effort into recruitment. It’s a new era of teaching after the pandemic, Joseph said, and the program has had to adapt.
"We took a different approach in terms of talking about leadership, talking about college, talking about what it’s like being a part of a program that provides support, encouragement, brotherhood and teamwork," he said.
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One realization, he said, has been that teachers are ambassadors for the teaching profession.
After all, the teachers they’re looking to recruit aren’t coming out of thin air — they’re sitting in classrooms across South Carolina.
The first time Maria (a pseudonym) taught a college class as a graduate student, the experience was so demoralizing that after the semester ended, she no longer wanted to be a professor. She had been assigned an introductory anthropology course just three weeks before the start of the semester. Her department chair’s only advice had been to look at another instructor’s syllabus.
“No one talked to me about pedagogy, no one shared teaching or adult learning resources, and certainly no one taught me how to create a syllabus or structure the class toward specific learning outcomes,” she recalls. And no one taught her techniques for engaging her students.
When it didn’t go well, Maria blamed herself. She assumed that her students’ apathy meant that she just wasn’t good at teaching: “As someone who was struggling unawares with impostor syndrome, I internalized what I considered my inability to teach until it damaged my sense of self. At the time, I thought, ‘If I cannot teach the basic principles of my discipline, I have no business being a faculty member,’” she told us.
Teaching as a graduate student, even under the best of circumstances, is distinctly challenging. You’re not yet an expert in the field, you may be not much older than the undergraduates in front of you and you’re juggling all the challenges of beginning to teach along with the intense pressure of graduate studies. In addition, you may be getting messages from your program to put teaching last and prioritize your research. Even simple things like being added to the schedule at the last minute can feel like a signal that your teaching contributions are an afterthought.
Nonetheless, graduate students teach introductory courses that may determine an undergraduate student’s future success in college. You are often teaching the front-door courses that allow students to continue in their major or complete core requirements. Some evidence suggests that undergraduates may even be more likely to adopt a major when a graduate student rather than a faculty member leads their initial coursework.
So if you are a graduate student who will begin teaching next semester and you’ve received little (or no) instruction, how can you quickly prepare so that your experience is not as demoralizing as Maria’s?
We suggest you take an approach that centers on what we believe is the most important aspect of teaching (and, frankly, what decades of research supports): forming connections. Taking time to get to know your students, designing ways for them to connect to each other and thinking hard about how you’re going to help students make personal connections to the course material will supply you the best chance at creating a course that you and your students look forward to.
Connecting to you. Let’s start with the first week. On day one—or module one of an online course—consider kicking things off with an overview of why you are excited about the course Topics or sharing a little bit about your educational journey and how it brought you to where you are now.
If you don’t have any experience teaching this course, you don’t need to share that. Instead, tell them about your knowledge of the material, the number of years you have been studying it and any fieldwork or professional experience you’ve had. If you feel comfortable, share some of the struggles you encountered as an undergraduate. The details of what you share are not as important as establishing a rapport with your students and communicating that you believe they can be successful in your course.
Connecting to other students. Once you’ve given your students a chance to get to know you and the course topics, use some time for an activity that allows students to get to know their classmates as well as addresses their expectations and concerns about the class. A surefire activity to accomplish both goals is to have students come to consensus around a set of expectations for your engagement and theirs. Think of it as co-constructing the goals of the course on the first day.
First, explain to the students that you’d like their input to establish a productive classroom learning community. Next, split students up into groups of four to five; this can be done face-to-face or online, in large lecture courses or small seminars. Ask them to generate a list of five expectations for classroom behavior, or, alternatively, suggestions for how you can best help them learn in the class. One of us, Aeron, often primes the pump by mentioning that past classes have asked that she return papers/tests within a certain period of time, or that students arrive on time and wait to enter the room if another student is presenting, etc.
Once student groups have generated their five suggestions, ask for a volunteer from each group to present the group’s suggestions while you record them. You can respond in real time to some of their suggestions. For example, if students request their papers returned within a week, you might let them know that because of your teaching load you won’t be able to get papers back within one week but pledge to get them back in two. Or you could collect all the groups’ suggestions, thank them and then use a few minutes of the next class to summarize their ideas and respond.
This activity can be done in online classes in a discussion board or Padlet with a group leader summarizing their group’s ideas. Such activities enable students to engage with each other in an authentic way as knowledgeable participants who have things to contribute to the shared learning of the course on day one. In conducting them, you signal to students that you are open to their input, and you also ask them to share in the responsibility for the success of the course. In that first engagement with students, you can help them better understand you and who you are as an instructor as well as who else is in the class with them.
Connecting to the material. Last, find time in your first week to allow students to make a personal connection to the course material. That could be an individual reflection where students share their previous experiences with the topic, express any fears or concerns they have about the course, or anticipate how the course will be of use to them in their lives.
In an introductory writing course, the other of us, Stephanie, often asked students to share a little about the most meaningful piece of writing they had ever written. Students described writing letters to loved ones, obituaries or essays that had earned them recognition. It helped ground the rest of the semester because students had already identified how meaningful a piece of writing could be.
Beyond the first week, the first time you teach a class you’ll likely be planning a week at a time, and that’s OK. Just keep asking yourself, “How can I help students connect to the course, to one another and to me as their instructor?”
If you are feeling uncertain, seek out resources. Ask to sit in on a class taught by an advanced graduate student, seek out your campus teaching and learning center (if you have one), or read one article about teaching in your discipline. Try to find a “teaching buddy”—a fellow graduate student with whom you can share strategies, failures and successes. That can be a rewarding and time-saving partnership if you decide to share materials and resources.
Keep the Connection Going
Finally, schedule a time during the semester when you will collect anonymous feedback from your students. We recommend somewhere between a third and halfway through the semester, but this can be done earlier. Consider asking your campus teaching center to conduct a midsemester feedback session with your students or creating an anonymous survey for them to complete online. After the feedback is collected, you’ll want to use time in the following class to address their feedback and explain any changes you plan to make in response to their feedback.
Asking your students for their feedback on your teaching when you are already anxious and uncertain may seem scary, but it can pay big dividends. If students are frustrated with an aspect of the course, discovering that early in the semester gives you an opportunity to address the issue and possibly change some things.
In addition to asking students what you are doing that is helping or not helping their learning, consider including questions that ask students to reflect on their own habits in the class, such as, “What are you doing in this course to help your learning?” Or “What could you start doing that would help you to be more successful in this course?” That encourages students to see the course as a joint enterprise with responsibility on both sides. Student feedback may also reassure you; students often supply new instructors more grace than expected.
Finally, remember that even if your teaching this semester is imperfect, you belong here. No one is good at teaching right away. Teaching is a practice, and it will take practice to excel at it.
Sam Bankman-Fried speaks onstage during the first annual Moonlight Gala benefiting CARE on June 23 in New York City. The FTX founder's parents are reportedly not teaching at Stanford next quarter.
Craig Barritt/Getty ImagesThere’s still much to unpack about the nuclear explosion that was crypto exchange FTX, founded and run by former billionaire and “effective altruist” Sam Bankman-Fried. The 30-year-old, who's already earned the acronym/moniker “SBF” — normally a cool accomplishment, unless you become infamous rather than famous, as is the case here — has been on an ill-advised media tour attempting to prove he isn’t a completely-over-his-head fraudster. Good luck to him on that front.
Meanwhile, Bankman-Fried’s parents have reportedly been (figuratively) struck by the collateral damage of their son’s reckless exploits. Bankman-Fried’s father, Joseph Bankman, has canceled the one law class he was scheduled to teach at Stanford early next year, according to the Stanford Daily. Bankman-Fried’s mother, Barbara Fried, also isn’t teaching any classes next quarter.
Both Bankman and Fried are lawyers and longtime professors at Stanford, dating back to the late ’80s. Bankman-Fried himself was born on Stanford’s campus and grew up around there, according to the San Francisco Standard.
Bankman hasn’t commented on why he’s not teaching any courses next year; Fried told the Stanford Daily that her absence was simply due to a “long-planned” decision to retire and has “nothing to do with anything else going on,” presumably referencing the downfall of her son’s fake crypto empire. She added that she would like to make a return to teaching in the future, which somewhat refutes her earlier statement. If she does teach again someday, it’ll certainly make for an interesting first lecture.
Boost students wellbeing and build resilience by celebrating the power of kindness. Children and young people are encouraged to learn about and practise kind acts with our range of kindness resources. They will learn the importance of being kind to others as well as themselves. It also explores resilience as kindness can help us to cope with any challenges and changes.
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Our free teaching resources are designed to supply children and young people the skills, confidence and willingness to act when someone is in need of first aid. They also make first aid simple to teach and fun to learn.
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First aid champions is a brand new online teaching platform for learners ages 5–18. It’s packed full of age-differentiated practical activities, videos, quizzes and guidance to support teachers to deliver first aid education. You can explore primary and secondary teaching ideas about:
- what to do in a first aid emergency
- basic first aid for common injuries
- how children and young people can stay safe
- behaving with kindness
- coping skills in challenging situations
- what might prevent people from stepping in to help and how to overcome barriers to action.
First aid champions covers the new RSE and Health curriculum requirements for teaching first aid in primary and secondary schools in England.
We invite final-year undergraduates to provide feedback on their programme of study – including the teaching and learning aspects of the student experience – through the National Student Survey (NSS).
At Manchester, our NSS scores for learning resources, learning community, and learning opportunities continue to climb.
Thursday, November 17, 2022
INTRODUCTION
Every agreement typically consists of a cluster of clauses towards the end, generally termed as ‘miscellaneous’ clauses and otherwise known as ‘boilerplate clauses’. Since the boilerplate clauses are perceived as non-substantive and distinct from other transaction specific sections that are considered the core of an agreement, these clauses are often included in contracts without any concern for the consequences and are unfortunately typically ignored. The boilerplate clauses acquire significance when a dispute arises regarding the terms or interpretation of the contract. A mistake in drafting these clauses could impact the outcome of the dispute. Therefore, it is critical to understand the role and impact of these clauses. In this article, we will address the issues concerning and the developments surrounding three boilerplate clauses that we regularly encounter, i.e., Entire Agreement, Severability and No Waiver.
ENTIRE AGREEMENT
It is a general principle in common law that an unambiguous written contract cannot be qualified, supplemented, or varied by oral or extrinsic evidence. This principle, also known as the ‘Parol Evidence Rule’, is captured under Section 92 of the Indian Evidence Act, 1872 (“Evidence Act”), which provides that no evidence of any oral agreement or statement shall be admitted, as between the parties to any instrument, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. This rule is, however, subject to certain exceptions. For example, oral evidence may be admitted to establish a collateral oral agreement as to any matter on which the document is silent and not inconsistent with the written terms.
An entire agreement clause has a similar purpose as the Parol Evidence Rule but has a broader effect.1 While the exact scope of an entire agreement clause depends on its precise wording, it usually provides that the written agreement is the complete agreement and shall supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter of the agreement. In Inntrepreneur Pub Co v East Crown Ltd.2, the court explainedthe purpose of an entire agreement clause as follows:
The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth, and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain) on which to found a claim such as the present to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that accordingly any promises or assurances made in the course of the negotiations (which in the absence of such a clause might have effect as a collateral warranty) shall have no contractual force, save insofar as they are reflected and given effect in that document.
Therefore, this clause prevents the parties from relying upon any understanding or statements made, both oral and written, during negotiations and claiming that the agreed terms are different from the written contract. It ensures that all terms and conditions are captured in a single contractual instrument in its entirety. In a typical PE or an M&A transaction where the commercials and the transaction documents are heavily negotiated for a considerable period of time, it is critical for the investor that the written document prevails over any informal or separate discussions that may have taken place. Thus, it is important to have a well-drafted entire agreement clause that excludes any negotiations, claims, or representations made prior to the execution of the transaction documents and which clearly states that the transaction documents set out the entire understanding between the parties, whether oral or written.
Another example where the entire agreement clause attains importance is when the parties have entered into multiple agreements, and there exists a contradiction between the terms of the prior and the latest agreement. For example, the Hon’ble High Court of Bombay, in Neelkanth Mansions and Infrastructures Private Limited and Ors. v. Urban Infrastructure Ventures Capital Limited and Ors.3, stated that the shareholders’ agreement in question, which had the ‘entire agreement’ clause, constituted and represented the entire agreement between the parties and had cancelled or superseded all prior arrangement, agreements or understandings. In another case, in the context of a share transfer agreement, a party justified its failure to purchase the shares by reading into the contract, based on negotiations, a contingent condition of listing of the shares before the trigger of the purchase obligation. The entire agreement clause came to the aid of the shareholder, as it precluded any contingent condition to be read into the contract.4
Given the considerable importance of an entire agreement clause, we need to be mindful about certain pointers while drafting this clause. Suppose the contracting parties intend to be bound by any term sheet or other documents they entered before executing the final agreement, in that case, parties should state in the agreement that the entire agreement clause does not exclude them. If parties enter into any ‘side letters’ under a transaction, then the parties should supply conscious thought to whether such side letters should be referenced in the entire agreement clause as constituting a part of the understanding between the parties. An interpretational issue could arise as to whether such side letters would be binding on the parties if they are not included as forming part of the transaction in the entire agreement clause. Further, courts have the discretion to imply a term into a contract to fill in gaps. This process of implication of terms results in a subjective exercise where the court evaluates how a reasonable and officious bystander would address the gap in the contract. An entire agreement clause that expressly excludes implied terms could prevent such implication of terms in a contract.5 Thus, the parties should cautiously consider the language of this clause with precise wording and context at the time of drafting.6
NO WAIVER
A waiver is the act of voluntary relinquishment or surrender of some known right or privilege. A no-waiver clause is designed to prevent the parties from inadvertently waiving their contractual rights. This clause becomes relevant when one (aggrieved) party becomes aware that the other party has breached the agreement between the two parties. No-waiver clause makes it difficult for a party to an agreement to claim that the aggrieved party has waived its rights concerning the breach committed by the other party claiming such waiver. Put another way, a no-waiver clause ensures that the terms and conditions of an agreement are not changed or modified unless both parties agree to the proposed change or modification in writing.
However, on certain occasions the courts have affirmed that a party to a contract may waive a contractual condition through its conduct or statements, even when that contract contains a no-waiver clause.7 In Tele2 International Card Company SA and others v. Post Office Ltd.,8 the post office sought to terminate the contract basis a breach that had occurred on the part of Tele2 an year ago. Although the post office was aware of the said breach since the beginning, it chose to continue with the contract until the dispute where the post office took the argument that it was relying on the no-waiver clause to enforce its right to terminate after a period of 1 year. It was argued that the post office had not elected to affirm the agreement by conduct, basis which the court termed the termination by post office as a repudiatory breach and held that Tele2 was in principle entitled to claim damages. The court also clarified that a “no-waiver clause does not remove the obligation of the aggrieved party to make an election”. Therefore, it is imperative that the party affected by the breach acts immediately to protect its rights, as any action inconsistent with the same maybe later construed against the aggrieved party.9 However, the above departure does not indicate a trend of reducing effectiveness of no-waiver clauses, rather it simply indicates that the aggrieved party should avoid taking actions that could be seen by the other party as waiving or modifying the terms of an agreement.
The presence of a no-waiver clause raises the bar high to prove whether the evidence of any informal waiver or modification is sufficient to establish that the parties have subsequently overridden the terms of the original contract.10 The courts have interpreted the no-waiver clause as yardstick to determine whether a party has actually waived or modified/amended the terms and conditions of the contract. In the case of MWB Business Exchange Centres Ltd. v. Rock Advertising Ltd., the Supreme Court of UK, while interpreting a no-oral modification and a no-waiver clause held that, at the very least, (i) there would have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its informality; and (ii) something more substantial would be required for this purpose than the informal promise itself.11 Hence, it would not be easy for the courts to arrive at a conclusion that a party has waived their rights given the presence of this clause.
In the context of private equity investments, we often come across situations where during the routine working of the company, the quorum requirements for board meetings or investor consent requirement for reserved matter items are sometimes not adhered to. Typically, investors would not like to call default or raise issues unless they perceive the conduct in the circumstances to be egregious. In such situations, a no waiver clause protects the investors and ensures that the quorum/consent requirements remain effective and that the non-invocation of default in any one instance does not adversely impact the rights.
SEVERABILITY
A severability clause removes certain terms from the contract if such terms are illegal, invalid, or unenforceable due to the operation of law. In doing so, the severability clause preserves the remainder of the contract as valid and enforceable, thereby making the enforceable terms independent of such unenforceable terms and/or their severance. However, severance of a few terms may potentially alter the underlying material objective/ meaning of a contract. In order to prevent such material change, ideally, severability clauses also contain reformatory language, i.e., it provides for a mechanism through which the parties may “re-negotiate in good faith and modify the contract to effect the original intent of the parties as closely as possible” in the event of severance.
Normally, the courts apply the ‘blue pencil’ test to weed out the unenforceable terms of the contract. According to the Black's Law Dictionary, the blue pencil test is a judicial standard for deciding whether to invalidate the whole contract or only the offending words. This test was devised by the English courts in the case of Mallan v. May,12 for determining whether striking out words from a contract containing unreasonable provisions would leave behind any substantial contractual obligations or not.13 The courts have held that only those terms can be severed, which are non-essential in nature and do not materially affect the essence of the agreement between the parties14. However, if the offending provision is essential to the contract then the entire contract is set aside due to its invalidity.15 In doing so, the courts also heed to the intention of the parties,16 questioning whether the parties would have entered into the contract in the absence of such unenforceable provision, the severance of which is impugned.17 The courts have also held that severance of such non-essential terms, does not cause the rest of the valid and enforceable provisions to fail.18
A modern view of the severability rule was laid down in Sadler v. Imperial Life Assurance Co. of Canada Ltd.19, where the court stipulated that a contract comprising of an unenforceable term nevertheless remains effective after the removal or severance of that term if the following conditions are satisfied: (i) the unenforceable term is capable of being removed without the necessity of adding to or modifying what remains; (ii) the remaining terms continue to be supported by adequate consideration; and (iii) the removal of the unenforceable provision does not so change the character or the essence of the contract. In the Indian context, Sections 57 and 58 of the Indian Contract Act, 1872 applies the rule of severability to reciprocal20 and alternative promises21, thereby rendering the illegal terms of a contract/promise as void and unenforceable, whilst accepting the validity and enforceability of the rest of the terms.
Sometimes, however, the courts intervene more than required, adversely interpreting the impugned clause or invalidating the same without ascertaining whether such clause is essential to the terms of the contract. Therefore, a severability clause assumes importance when the invalidated or unenforceable term is essential to the transaction.22 A robust severability clause anticipates and precludes an undesirable judicial scrutiny/outcome while protecting the whole agreement from the repercussions of an unenforceable term by severing such term or part thereof. Therefore, it is advisable, as a drafting solution, to tailor such clauses to the needs of the parties by expressly identifying provisions that are essential to the transaction and which clauses can be invalidated if need be. A suggestive language for such clause can be as follows, “if any provision or partial provision of this agreement, except for Article […] (Indemnification), Article [..] (Liquidated Damages), [or any other provision found by a court to be essential to the agreement], is found to be illegal, invalid or unenforceable for any reason, it shall be deemed to be severed from this Agreement; and the remaining part of such provision and all other provisions of this Agreement shall continue to remain in effect.”
The existence of a severability clause could also simplify the exercise of the court in preserving a portion of the contract which gives effect to the intent of the parties as seen in Shin Satellite Public Co. Ltd. v. M/s. Jain Studios Limited.23
CONCLUSION
Parties should be cautious while drafting boiler plate provisions in their contracts. These clauses have a great impact on the implementation of other provisions of the contract that may have been heavily negotiated and carry substantive rights of the parties. Given the fact that such clauses are usually the first port of call once a dispute arises and tend to ensure primacy and enforcement of the written word, the use of well drafted provisions could significantly reduce the time and money spent in resolution of disputes.
FOOTNOTES
1 MacMillan v. Kaiser Equipment Ltd, [2004] BCJ 969.
2 [2000] 2 Lloyd’s Rep 611 (at 614)
3 Commercial Arbitration Petition Nos. 13, 38, 39, 40, 42, 43, 44, 45, 46, 48, 49, 50, 52, 53, 54, 55, 56, 58, 59, 60, 62, 65, 66, 67 and 68 of 2017, decided on December 7, 2018 by the High Court of Bombay.
4 Lee Chee Wei v. Tan Hor Peow Victor and others and another appeal, [2007] SGCA 22
5 Meow Moy Lan and others v. Exklusiv Resorts Pte Ltd and another, [2021] SGHC 155; Ng Giap Hon v. Westcomb Securities Pte Ltd and others, [2009] SGCA 19.
6 Lee Chee Wei v. Tan Hor Peow Victor and others and another appeal, [2007] SGCA 22;
7 Hovnanian Land Investment Group, LLC v. Annapolis Towne Centre at Parole, LLC, 415 Md. 337 (2010)
8 [2009] EWCA Civ9
9 Supra at 7.
10 Virulite LLC v Virulite Distribution Ltd., [2014] EWHC 366 QBD
11 [2019] AC 119
12 (1844) 13 Meeson & Welsby 511
13 Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co Ltd.; [1894] A.C. 535; Attwood v. Lamont, (1920) 2 KB 146.
14 BOI Finance Limited v. Custodian and Ors.; (1997) 10 SCC 488.
15 Miller v. GGNSC Atlanta, LLC, 746 S.E.2d 680 (Ga. Ct. App. 2013); Small v. Parker Healthcare Mgmt. Org., Inc., 2013 WL 5827822 (Tex. Ct. App. 2013); Hill v. Names & Addresses, Inc., 571 N.E.2d 1085 (Ill.Ct. App. 1991).
16 Shin Satellite Public Co. Ltd. v. M/s. Jain Studios Limited, Arbitration Petition 1 of 2005; SC Judgement dated 31.01.2006; Schuiling v. Harris, 747 S.E.2d 833, 837 (Va. 2013); Jacobs v. CNG Transmission Corp. (Pa. 2001); VICI Racing, LLC v. T-Mobile USA, Inc., (3d Cir. 2014)
17 Panasonic Co. v. Zinn; 903 F.2d 1039 (1990)
18 Babasaheb Rahimsaheb v. Rajaram Raghunath, AIR 1931 Bom 264
19 [1988] IRLR 388
20 Section 57, Indian contract Act, 1872
21 Section 58, Indian contract Act, 1872
22 ‘Drafting a Better Severability Clause’ Article by E. Fishman, and R. James (2013). [online] available at:
https://www.pillsburylaw.com/images/content/4/4/v2/4483/Article20131001DraftingaBetter
23 Arbitration Petition 1 of 2005; SC Judgement dated 31.01.2006.
Vardhikaa Sharma also contributed to this article.Nishith Desai Associates 2022. All rights reserved.National Law Review, Volume XII, Number 321
