WK 5 - Identifying terms Flashcards
What is battle of the forms?
When to parties purport to contract with one another, but each on their own T&Cs.
- Buyer places purchase order (using buyer’s standard terms)
- Seller acknowledges this by sending their own standard form (containing seller’s standard terms)
- Seller delivers goods to the buyer
- Buyer accepts delivery
Has a contract been concluded? If so, on whose terms?
Buyer makes offer, but also accepts (counter-offer). In turn, last set of conditions before acceptance, so, seller’s terms prevail.
- Buyer places order for tyres (using their own standard terms/printed form)
- Seller delivers goods without any written acceptance, but delivery note(s) and subsequent invoice(s) have their own terms on which are different to the buyer’s terms.
Has a contract been concluded? If so, on whose terms and when?
Buyer’s terms prevail.
Explain ‘last shot analysis’
If there was an acceptance of the last offer, a contract would be formed. Party making final offer wins.
How will courts deal with situations when one party indicates that their particular terms which would operate were clear from the outset, and that these terms would prevail over any contrary terms suggested?
Once a counter-offer comes in, that destroys the original offer, including that term.
What happens to terms if a counter-offer comes in?
Original offer and terms destroyed.
Which case disputes the destruction of terms after counter-offer?
Specialist Insulation Ltd v Pro-Duct [2012]
(where one party indicates that it could only be regarded as departing from its quotes terms if it explicitly agreed so in writing, then that was the basis on which all subsequent negotiations should be viewed.)
Name the examples of express terms (7)
- Entire agreement clause
- Arbitration clause
- Jurisdiction clause
- Force majeure clause
- Restrictive covenant
- Liquidate damages/penalty clause
- Exclusion clause
Force majeure clause
Excuses one/both parties from performance of contract and damages as result of unforeseen circumstances.
[Neither party will be liable for inadequate performance to the extent caused by a condition (e.g., natural disaster, act of war/terrorism, riot, labour condition, governmental action, and internet disturbance) that was beyond the party’s reasonable control.]
Restrictive covenant
Typically employment.
[For a period of [X months] after your Termination Date, you will not engage in business with or be in any way interested in any person, firm, company or organisation that conducts [Restricted Business] within the [Restricted Area], either personally or by an agent, whether on your own or in association with another person/organisation.]
Exclusion clause
Disclaims liability.
[The management accepts no liability for any article lost on the premises]
Liquidated damages/penalty clause
A fixed or agreed sum, that shall be paid as damages for some breach of contract.
[In the event of delay in [type of product] completion, the [performing party] shall pay liquidated damages to [the owner] in the amount of [£ amount per day/week, etc.] The parties agree that liquidated damages as described in this Agreement are a genuine estimate of [the owner’s] sole remedy for such delay. Delays caused by Force Majeure events or by actions of [the owner] shall not constitute a delay resulting in the payment of liquidated damages.’]
Arbitration clause
Parties to a contract agree to have their dispute resolved by a third-party decision-maker [binding].
[A dispute having arisen between the parties concerning [X], the parties hereby agree that the dispute shall be referred to and finally resolved by an arbitration under the Y rules.
The number of arbitrators shall be [N]. The seat, or legal place, of arbitration shall be [City and/or Country].]
Jurisdiction clause
Geographical limits of court’s authority. Which laws apply?
[This Agreement, and any dispute or claim (including non-contractual disputes or claims), arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the laws of [Country]. Each Party irrevocably agrees that the courts of [Country] shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or in its subject matter or formation.]
Entire agreement clause
Look out for supersedes!!
This Agreement constitutes the entire agreement of the parties relating to the subject matter addressed in this Agreement. This Agreement supersedes all prior communications, contracts, or agreements between the parties with respect to the subject matter addressed in this Agreement, whether oral or written.
