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Break Clauses and Rent Repayments Post Marks and Spencer plc v BNP Paribas

James Condie, Solicitor at law firm Mundays, comments

On 2 December 2015, the Supreme Court handed down the much awaited decision in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd.

The facts of the case revolved around whether M&S (the Tenant), after exercising a break clause, was entitled to reclaim the rent paid in advance for the period between the break date and the next quarter day.  The Lease did not expressly cover the point.

The decision of the Supreme Court re-affirmed the earlier decision reached by the Court of Appeal, once again confirming that in the absence of any exceptional circumstances, the courts are reluctant to imply terms into commercial contracts agreed between businesses.

Facts of the Case
In 2006, M&S entered into four separate sub-leases of four floors in an office block in Paddington (the Point), with BNP Paribas as Landlord.  The Term of each Lease was from 25 January 2006 to 2 February 2018.  Rent was paid by equal quarterly instalments in advance of the usual quarter days'.  

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