Sometimes it is better to consider heading all emails with “subject to contract” as a failure to do so runs the risk of forming a contract without the intention and/or having the appropriate protection.
4. Now for the battle of the forms. At what point is the contract formed? Which party’s terms will apply? If a party offers to contract on its own terms, which the other party accepts but then imposes its own terms, there is no acceptance but rather a counter- offer. Each party wants to ensure its terms are the last set of terms despatched prior to performance, at which point the contract between the parties is formed.
5. Acceptance is the final step before the contract is formed and becomes binding, unless the other party agrees to vary the terms of the contract at a later date; so at this point normally no other terms can be incorporated into the agreement, unless the agreement provides for it.
Consideration
1. A promise cannot be enforced unless there is consideration given or promised in exchange for it.
2. Consideration does not need to be adequate, however, it must have some value (monies or monies worth).
3. Deeds do not require consideration to be given. A deed is a written document which is executed with additional formalities and
by which an obligation binding on some person is created or confirmed.
4. Past consideration is no consideration, i.e. if a party performs a pre-existing obligation, it does not constitute consideration for a new obligation.
5. In most cases consideration is obvious but if you are not sure it exists either acknowledge in an agreement the existence of some consideration (e.g. £1) or execute the agreement as a deed.
Intention
1. A contract cannot be made unless the parties have a mutual intention to create a legally binding agreement.
2. An intention to create legal relations is presumed in commercial situations but it is always better to make it clear.
Certainty
1. The agreement must be complete. It must not lack an essential term which constitutes the fundamental purpose of the agreement.
2. The agreement must not be vague or ambiguous i.e. uncertain.
3. Although in some circumstances a court may decide to fill in perceived “gaps” in a contract in accordance with the parties’ intentions at the time, this should not be relied on.
Do think carefully when you are forming a binding agreement (a contract) with one or more parties to ensure you have incorporated your terms and conditions in the contract that you may wish to rely on at a future date.
So, three simple things to remember: • Know who is instructing you
• Identify your client by confirming in writing to your client your instructions, your offer and supply them with your terms and conditions at this point
• Ensure your terms and conditions are accepted by your client
“put everything in writing”
Matrix Insurance Services Ltd. and the author of this article do not accept any liability for any errors or omissions in this article. The information contained in this article is for general use only and is not intended to constitute legal or insurance advice and should not be treated as a substitute for such advice.
Matrix Insurance Services Ltd - Provider of professional indemnity scheme for IIMS members
Karen Brain
Managing Director – solicitor non-practising
Tel: 01892 724060
enquiries@matrix-ins.co.uk
TThe R eporhe Reportt • • S Sept ember 2020 • Issue 93 | 103 eptember 2020
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112
