Making Up For Poor Contract Process?

Getting a contract in place before you provide works, goods, or services is not something the UK construction industry is great at (roughly one-third of projects start without any contract).

But I expect more of the companies that sell a simple off-the-shelf product. So when I bought my recent JCT 2016 DB (£73.41 inc vat), I didn’t expect it to arrive accompanied by four pages of “JCT Online Purchasing Terms and Conditions” and a return form with another page of Terms and Conditions.

PS Is it just me or is there a delicious irony in receiving a hard copy of their on-line T&C?

Poor contact process

This practice of dumping T&C everywhere in the hope that some of them might stick is wrong in so many ways.

  1. Too late: in law those T&C cannot affect the purchase of my JCT 2016 DB as they were not sent before the contract was concluded ie when I paid my money.
  2. Trying too hard: has the supplier recognised how few contract buyers will read their on-line T&C and have decided to send them now in case I buy another contract? Or is it just paper dumping for the sake of it?
  3. Poor process: surely at some stage in the transaction I lied, by clicking the button that says I have read the terms and conditions? Why bother to duplicate that click?
  4. Complexity: unsurprisingly for a company that sells contracts of 50,000 words and over 100 pages long, the JCT Online Purchasing Terms and Conditions are overly legal and barely fit for their purpose.

Bless whoever wrote these T&C! They clearly know their contract law and aren’t afraid to show it:

  • content displayed [on the website] does not constitute an offer to sell JCT goods to the customer“. Correct. In law it is called an ‘invitation to treat’… not that most customers know or care. This is irrelevant/showing off.
  • an order placed by the customer constitutes an offer to purchase...” Correct. But irrelevant.
  • acceptance of the order by JCT constitutes JCT’s agreement to the customer’s offer…” Correct. But irrelevant.
  • … and creates a legally binding contract between JCT and the customer“. Incorrect. A contract requires more than just offer and acceptance. It requires intention, consideration and certain terms. Just saying something is a contract does not make it so!

These T&C reflect a poor contract process.

Transparent

The OFT Report on Consumer Contracts 1312 said that a supplier had to assume that consumers did not read T&C so (1) the T&C should contain no surprises and (2) the supplier should make every effort to make it easy for the consumer to read those T&C before entering into the transaction. This has been reflected in the Consumer Rights Act which requires terms to be transparent in their widest sense.

What should do you?

Don’t use your contract terms to make up for a poor or poor understanding of the process of creating a contract.

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