How can you make sure your terms and conditions (T&C) get into your contracts? Sometimes you’ll need to win the battle of the forms (read more), but a better approach is to get your contract/proposal/T&C signed in person or accepted by email.
A lazy process?
When you agree with another company to carry out a task or project together, you’ll probably record that agreement in a contract.
Ideally, you sit down and agree the terms and conditions that are relevant. But sometimes, the contract process becomes a little lazy. Without even thinking, you keep sending emails with documents attached, which have your T&C included. The other side do the same. Contractual tennis if you like!
Your agreement could end up with:
- your T&C
- their T&C
- terms implied by law – not really yours or theirs
- a blend of your T&C and their T&C
This to-ing and fro-ing of T&C is not unusual (it even has a name: battle of the forms). It is for you to “decide the terms on which you want to be bound – you are masters of your contractual fate.” (Pagnan)
What should you do?
But what’s the best way to make sure your T&C apply?
- You could show a ‘common intention’ on which terms are to apply – although it would be better to get your T&C agreed & signed: Tekdata v Amphenol Ltd
- You should avoid contractual ‘deadlock’ and definitely not ‘button your lips’ and fasten your seatbelts’ hoping your project won’t end in dispute: GHSP v AB Electronic
- You shouldn’t wait for the court to determine your agreement – when you might need to argue the other side’s T&C apply because they are more advantageous to you: Specialist Insulation v Pro-duct
- You should ensure the offer contains T&C which are clearly accepted to provide certainty ‘which is both desirable and necessary in order to promote effective commercial relationships’: Trebor v ADT
The truth is that in complex contractual processes it may not be easy to tell whether there is a contract on your T&C unless you get them signed!
Cases: Tekdata Interconnections Ltd v Amphenol Ltd (2009), GHSP Inc v AB Electronic Ltd (2010), Specialist Insulation Ltd v Pro-duct (Fife) Ltd (2012)
