THE MODIFICATION OF CONTRACTS
AbstractIn this article, the author analyses the nature of contract modification by express agreement and conduct, to examine the extent to which an express modification can be an enforceable agreement. He considers several categories of contract — sales, employment and lease — to illustrate that the courts will uphold modification based not on estoppel, but waiver. He reviews the jurisprudence to show how the Statute of Frauds deeply affected the concept of waiver and obscured the doctrine of modification. He argues that if acceptance of modification conflicts with the orthodox conception of valid contracts, because it allows concessions and may exclude consideration, then it must be reconciled by way of the parallel existence of waiver agreements.
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