In Rock Advertising Limited v. MBW Business Exchange Centres Limited  UKSC 24, the Supreme Court confirmed that an alleged oral modification of a contract is not valid if it does not contravene a verbal amendment to the agreement. While companies may be able to take some comfort from the fact that there is now more certainty about the maintenance of such clauses, it is important to exercise a degree of caution, since parties that have relied on so-called oral variations can still use estoppel to support this diverse agreement. For example, it is helpful for companies to require their employees to sign confidentiality and confidentiality agreements (NDA) to protect trade secrets. But what about the risk that these agreements will be used to gag employees who might otherwise rule on workplace abuse? Parliament will consider the use of NOAs in the wake of the presidential club scandal, after waitresses were harassed at a dinner reserved for men and businessmen.3 Henry James Sumner Maine suggested that the social structures of social status roles are those based on contractual freedom. A status system defines obligations and relationships by birth, but a contract assumes that individuals are free and equal. Modern libertarianism, as promoted by Robert Nozick, regards contractual freedom as the expression of the independent decisions of separated individuals who pursue their own interests in a “minimal state.” None of you today will remember the troubles we had — when I was appointed to the bar — with exception clauses. They were printed in small print on the back of tickets and order forms and invoices. They were included in catalogues or calendars. They were found to be binding on anyone who took them without objection. No one has ever raised any objections. He never read them, nor did he know what they were.
No matter how unreasonable they were, he was bound. All this was done in the name of “contractual freedom.” But freedom was on the side of the great concern of the use of the printing machine. No freedom for the little man who took the ticket or the order form or the invoice. The great concern said, “Take it or let it do it.” The little man had no choice but to take it. The great cause could and could free itself from responsibility in its own interest without taking into account the little man. It kept getting away with it. When the courts said of the great concern, “You have to say it in plain language,” the great concern did not hesitate.