England and Wales

Inclusion of Ts&Cs

National Law
Under the laws of England and Wales, Ts&Cs must be agreed in order to be validly included. Agreement may be express e.g. in a framework agreement, or may be implied, provided reasonable notice of the Ts&Cs has been given. This will usually be by reference to the time the contract is created. Whether notice is “sufficient” is a question of fact and cases are generally very fact specific. However, where, for example, Ts&Cs are printed on the reverse of a document, there should be a clear reference to the Ts&Cs on the face of it.

Case law has shown that stating that Ts&Cs are “available on request” on a work order may be sufficient to incorporate terms into a contract.

Where reference is made to Ts&Cs on a website, the same rule applies, namely whether reasonable notice has been given of the relevant terms.

Any unusual or onerous terms (including many exclusion clauses) should have particular attention drawn to them.

Where contracts are on standard terms and are not negotiated, the courts may conclude that certain terms (particularly any extensive and significant exclusions) are unreasonable and not legally binding.

Care should be taken where there are competing Ts&Cs, which may result in a Battle of Forms situation.

CISG
The UK is not a CISG signatory.

Battle of Forms

National Law
Under the laws of England and Wales, either the Last-Shot Rule or the Knock-Out Rule applies. Traditionally, the Last-Shot Rule applies. However, in more complex cases and in recent years the appeal courts have seemed to favour either a "no contract" finding or a contract conducted through conduct with terms implied by statute or by common law.

CISG
The UK is not a CISG signatory.

Contact

CMS Cameron McKenna LLP
Cannon Place
78 Cannon Street
London EC4N 6AF
United Kingdom