Entire Agreement Clauses Under English Law

Four functions, not one

An entire-agreement clause performs up to four discrete functions: integration of the written document as the complete record of the bargain; exclusion of extrinsic representations and warranties as a source of contractual liability; exclusion of collateral contracts; and exclusion of misrepresentation claims based on pre-contractual statements. They are not interchangeable, and English law requires different drafting for each.

The integration and collateral-contract functions are usually straightforward. Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] 2 Lloyd's Rep 611 confirmed that a clear entire-agreement clause defeats a collateral-warranty pleading where the alleged warranty contradicts the written terms, and NF Football Investments Ltd v NFCC Group Holdings Ltd [2018] EWHC 1346 (Ch) is the modern restatement.

Excluding misrepresentation takes express words

The misrepresentation function is the difficult one. AXA Sun Life Services plc v Campbell Martin Ltd [2011] EWCA Civ 133 is the foundation: an entire-agreement clause excludes contractual liability for extrinsic statements, but to exclude liability for misrepresentation the clause must say so expressly. Rix LJ held that words of contractual significance - promises, agreements, undertakings - do not, without more, exclude liability for misrepresentation; the clause has to address misrepresentation in terms.

And no clause excludes fraud. BSkyB Ltd v HP Enterprise Services UK Ltd [2010] EWHC 86 (TCC) - the long-running customer-relationship-management dispute against EDS, in which a fraudulent misrepresentation claim succeeded - confirmed that an entire-agreement clause may exclude non-fraudulent misrepresentation but cannot defeat a fraudulent one. An express fraud carve-out is therefore essential drafting, not optional: it removes argument and supports the reasonableness of the rest of the clause.

First Tower Trustees and the reasonableness test

Non-reliance acknowledgements were once used to create a contractual estoppel and so escape the reasonableness test under section 3 of the Misrepresentation Act 1967. First Tower Trustees Ltd v CDS (Superstores International) Ltd [2018] EWCA Civ 1396 substantially narrowed that route. The Court of Appeal held that where a non-reliance acknowledgement is invoked to defeat a misrepresentation claim, its substance is to exclude liability, so it must pass the reasonableness test under section 11 of the Unfair Contract Terms Act 1977 (as applied through section 3 of the 1967 Act).

The earlier approach in cases such as Thornbridge Ltd v Barclays Bank plc [2015] EWHC 3430 (QB) and Sears v Minco plc [2016] EWHC 433 (Ch), which had treated such clauses as primary-obligation provisions immune from the reasonableness test, was disapproved. The drafting response is to include an acknowledgement of reasonableness that records the parties' relative bargaining positions, access to advice and negotiation history - not determinative, but admissible evidence that supports the clause.

The cross-border angle

Civil-law systems with mandatory good-faith doctrines do not respect entire-agreement clauses to the same extent as English law. Section 242 of the German BGB and Article 1104 of the French Code civil treat good faith as a non-derogable limit on contractual rights, and a French or German court asked to enforce an English-law entire-agreement clause that shields a party from pre-contractual bad faith may reach for the forum's overriding mandatory rules or public policy. The UAE's new Civil Transactions Law (Federal Decree-Law 25/2025, in force since 1 June 2026) codifies good faith and abuse of rights and introduces liability for bad-faith negotiation.

The practical conclusion is that in a cross-border deal where enforcement will realistically take place in a civil-law forum, the entire-agreement clause should not be assumed to do the same work it does in the English courts. The clause should also be drafted to survive on its own terms - with the fraud and mandatory-law carve-outs express, and the clause stated to survive termination and to be severable so that a finding of unreasonableness does not collapse the contract.

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Practical checklist

Decide which of the four functions you need and draft for each separately.
To exclude misrepresentation, say so expressly - do not rely on integration or 'representations' buried among contractual words (AXA Sun Life).
Include an express fraud carve-out; no clause excludes fraud anyway (BSkyB), and it supports the rest of the clause.
Expect a non-reliance acknowledgement to be tested for reasonableness (First Tower Trustees); add a reasonableness acknowledgement recording bargaining context.
State that the clause survives termination and is severable, so unreasonableness does not collapse the contract.
In a civil-law enforcement forum, do not assume the clause does the same work as in the English courts.

This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.

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