SQE2 Legal Drafting 2

Question 1

When drafting a non-disclosure agreement (NDA), which elements are essential for enforceability?

Accepted Answer

A clear definition of confidential information, the purpose for which it may be used, the duration of obligations, permitted disclosures, and remedies for breach

Answer

An enforceable NDA requires: a precise definition of what constitutes confidential information, the permitted purpose for use, the duration of confidentiality obligations, exceptions (publicly available information, independently developed, legally required disclosures), and remedies including injunctive relief.

Question 2

What is the 'blue pencil test' in the context of drafting restrictive covenants?

Accepted Answer

A principle allowing courts to sever an unenforceable part of a restrictive covenant, leaving the remainder enforceable, provided the removal does not change the nature of the covenant

Answer

The blue pencil test allows courts to strike out (sever) an unenforceable part of a restrictive covenant if what remains is enforceable, grammatically sound, and does not change the fundamental character of the covenant. The court will not rewrite the clause.

Question 3

When drafting a settlement agreement in an employment context, what must be included for the agreement to be valid under the Employment Rights Act 1996?

Accepted Answer

The agreement must be in writing, relate to particular proceedings, the employee must have received independent legal advice, the adviser must have insurance, and the agreement must identify the adviser

Answer

Section 203 of the Employment Rights Act 1996 requires settlement agreements to be in writing, relate to particular complaints or proceedings, confirm the employee has received advice from a relevant independent adviser (who must be identified and insured), and the conditions regulating settlement agreements must be satisfied.

Question 4

In property drafting, what is the significance of the 'usual covenants' implied into a lease?

Accepted Answer

They are implied terms covering rent payment, repair obligations, quiet enjoyment, and insurance, which apply unless expressly excluded or varied

Answer

The usual covenants include the tenant's covenant to pay rent, keep the premises in repair, allow the landlord to enter and inspect, and the landlord's covenant for quiet enjoyment. They are implied where the lease is granted on 'usual terms' but can be varied or excluded by express provision.

Question 5

What drafting technique should be used to ensure a contract clause survives the termination of the agreement?

Accepted Answer

Include a survival clause that expressly lists which provisions continue after termination, such as confidentiality, limitation of liability, and dispute resolution

Answer

A survival clause expressly states which provisions continue in force after the contract terminates. Common surviving provisions include confidentiality obligations, limitation and exclusion of liability, intellectual property rights, dispute resolution mechanisms, and governing law.

SQE2 Practice Test

SQE2 Practice Test

SQE2 Legal Drafting 2