Scotland

Inclusion of Ts&Cs

National Law
Under Scots law, Ts&Cs may be incorporated into commercial contracts by both express and implied reference.

In terms of implied reference, it must be reasonable to expect the document containing the Ts&Cs to have a contractual effect.

A document issued after a contract is made will not be a part of a contract unless incorporated into the contract by express reference or through a consistent course of prior dealing between the parties. For example, Ts&Cs included on invoices and delivery notes will not be incorporated into a contract earlier concluded in respect of the same subject matter.

It is not necessary to set out the Ts&Cs in the contract in order for them to be incorporated, so long as adequate notice is given which identifies the Ts&Cs. This can include a reference to the Ts&Cs being available on request.

Whether all of the Ts&Cs have been validly incorporated into a contract by reference will depend on their contents. Ts&Cs which are particularly onerous (such as indemnity, exclusion of liability, and liquidated damages provisions) or unusual must be made particularly clear.

Assent to contract conditions may also be given by way of previous dealings between the parties. For this to validly incorporate Ts&Cs into a contract, there must be a previous course of consistent dealing; the other party must have knowledge of the Ts&Cs; and there must be assent to the Ts&Cs relied upon.

Where a contract has been signed, the parties will generally be bound by its terms, including any Ts&Cs included by reference. Express agreed terms may prevail over conflicting provisions in standard Ts&Cs.

CISG
The United Kingdom has not yet ratified the CISG and thus there is no relevant Scottish case law on this matter.

Battle of Forms

National Law
Traditionally, under Scots law, the Last-Shot Rule applies. However, recent case law suggests a move towards a more holistic approach.

Historically, the approach in Scotland has not differed from that adopted in England and Wales. The courts adopted a traditional offer-and-acceptance analysis of the exchange of forms to determine whether or not there was a contract and what the applicable terms would be. This approach has often resulted in the party who was last to communicate its terms prior to performance of the contract “winning” the battle of the forms (i.e. the Last-Shot Rule). However, in a number of recent instances, the courts have instead opted to look at the parties’ communications as a whole to determine what was intended on an objective basis.

CISG
The United Kingdom has not yet ratified the CISG and thus there is no relevant Scottish case law on this matter.

Contact

CMS Cameron McKenna LLP
191 West George Street
Glasgow G2 2LD
United Kingdom