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Business contracts: let’s not do battle! (Part 2)


In Part 1 last month, Justine Lowe from SME Solicitors explained how the Battle of the Forms can arise.  Here in Part 2, she suggests how businesses can avoid the situation before battle lines are drawn.

 

  • Educate sales and purchasing teams so that they recognise the scenario and don’t get caught out.
  • Have effective in-house processes for contract formation. Intercept orders placed on another’s terms.
  •  Use acknowledgement of orders with your terms included as standard practice.
  • Have properly drafted terms and conditions which can add wording to try and make sure that your terms prevail. This may not work if your terms are not deemed to govern the contract but can be a useful bargaining chip.
  •  Avoid oral discussions that inadvertently conclude an oral contract unless it is clear that your terms apply or what you discuss is “subject to contract” so there is an opportunity to form a written agreement after the discussions.
  • Ensure your terms are included in as many pre contractual   documents as possible and aim for being the last set of terms exchanged pre contract or before the contract is performed e.g. delivery of the goods or services. On an invoice is too late.
  • Use automatic links to website terms.
  • Perform the contract according to your terms to show a course of dealing.
  • Keep full dated records showing the history of the order from start to finish.
  • If your terms require a signature, then make sure that the other party signs them.
  • Be the party that concludes the contract and keeps control of when an order is accepted and becomes a contract. Don’t make open offers capable of being accepted on the others’ terms.
  • If you know that you are in a battle of the forms situation, discuss the possibility of writing a bespoke contract combining the terms that each party wants to include to make the contract work.

 

For advice on all aspects of business contracts and terms and conditions, please contact Justine Lowe at SME Solicitors on 01905 723561 or email Justine.lowe@smesolicitors.co.uk

Added: 15 Nov 2021 10:36


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