It frequently comes as a surprise to businesses who have put time and effort into creating a set of terms and conditions (T&C’s) to regulate their relationships with customers and suppliers, that these T&C’s have not been effectively incorporated into their contracts.
Generally speaking a contract is formed when an offer made by one party (Party A) is accepted by another (Party B), either expressly with words or deemed accepted by their actions, for example by Party B fulfilling their obligations under the contract.
Where there is only Party A’s terms and conditions, for example because Party B is a very small business or an individual consumer, the position is relatively simple:
The position becomes a lot more complicated when both parties have their own competing terms and conditions. This “battle of the forms” often occurs when:
We are now faced with a number of questions. Has a contract been formed, given that Party B altered the terms with their acceptance? If so, whose T&C’s have been incorporated into the resulting contract? Or have any terms been incorporated at all?
Unfortunately, the solution to this depends on the individual facts and circumstances of each situation. There is no single route to be followed (without both parties signing the same contract) to guarantee that a contract will be formed incorporating a particular set of terms when both parties are trying to use their own standard T&C’s.
However, there are a number of practical and operational measures for a business to consider that could turn the battle in their favour:
For further advice on what steps a business can take to maximise the chances of successfully incorporating its standard T&C’s into contracts with customers and suppliers, please contact the Corporate / Commercial team at Raworths on 01423 566 666 or contact Jennifer on firstname.lastname@example.org
Published on 23 January 2020