Frankly there are some clauses in contracts which are little more than plastering over the cracks in poor relationships or in the pre-contract process.
When reviewing your contract you should beware any of my ‘favourites’ (I use that term loosely):
- cancellation ‘we can terminate your contract if you don’t have the skills we need or that you claimed to have‘ – this papers over the cracks of your pre-qualification processes; you should check competence before entering into the contract, rather than have a ‘get us out of jail’ clause when it turns out you appointed the wrong provider!
- a statement in your T&C that ‘nothing in our website constitutes an offer capable of acceptance‘ – this papers over a poor contract process; if there is a meeting of minds and the contract essentials (read more) then there is a contract between you; it is up to the parties to reduce that to writing.
- a statement in your T&C sent with goods ordered online that ‘an order placed constitutes an offer to purchase...’ – this papers over the cracks of poor process; any term only sent with delivery is too late to form part of the contract which has already been discharged by performance (delivery and payment).
- a provision that ‘the parties will use their best endeavours to agree X after the date of this contract‘ – this is papering over the cracks of uncertainty; contracts need certain terms to be binding; in English law this is type of provision is an agreeement to agree and unenforceable (read more).
- inserting a provision that ‘You confirm by signing this document/clicking this button that you have read and agreed to the terms and conditions‘ – this papers over the crack of bad contracts which no-one wants to read and back contracting when we assume a client has read rather than discuss it with them; back in 2010 the UK Financial Services Authority said “companies should not even ask consumers to assert that they had read and understood a contract or a set of terms and conditions because they are not likely to have done so.“
- a right for the provider to ‘change the goods, works or services contracted for at our option and without notice‘ – this papers over the cracks of not scoping the works, goods or services properly; the contract should state the items that will meet the client’s needs and have a provision for mutually agreed changes (read more).
What should you do?
If you come across clauses that you simply do not understand, ask the company who sent it to you ‘what is it meant to do?‘. In 2019 I will be hosting a series of #AskSarah livestreams where you can post questions like this directly.