Elective: Commercial and IP

Commercial Law Sale Contracts Exam: Advise client on issues of drafting, interpretation or implementation of standard terms and conditions of sale and supply of goods & services.

Key legislation:

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Sale of Goods Act 1979: sets out basic rights and duties of the parties to the contract and rules relating to delivery, price, passing of title and risk, measure of damages etc. The provisions o the act can be varied or excluded by express provision.

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Supply of goods and services Act 1982

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UCTA 1977

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UTCC Regulations 1992

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Consumer Protection and Unfair Trading Reg 2008

Standard Terms:

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Written contract terms. Generic; not personal to each transaction. Saves cost & ease of negotiation. Advantages of using Standard terms Disadvantages of using standard terms
? Set out framework of how business will conclude its
? Not necessarily incorporated contracts
? Legal restrictions on
? Less time and expense [less negotiation]
excluding liability
? Vary the default rules of legislation - replace
? Risk of staff using standard with more applicable provisions terms which are not appropriate for that
? Impose terms more favorable transaction
? Certainty
? Require regular review -
? Business will be familiar with provisions take into account legislative and can resolve disputes faster and market changes which
? Conclude contracts at more junior level change often.

? Incorporation: Battle of the forms: "Last shot rule" applies = the contract will be deemed to have been concluded on the terms set out in whatever document received prior to an act performance [thereby implying acceptance of those terms] by the other party.
Make sure standard terms are brought to table ASAP. [brochures / initial documentation - these are NOT contractual offers [make client aware of this]
Staff training: they should know about Battle of Forms - so incorporation of terms is mo likely. Have set / standard procedure that staff must follow when concluding contracts
Don't mention terms at all - risky approach
All documents sent out should include terms [draw attention to onerous / important terms to ensure they are incorporated.

? Incorporation: Exception to last shot rule = where the party expressly stated they were no happy with the terms of the other. [GHSP v AB Electronic Ltd]. The default position of SG applies.
? Incorporation: Prevail clause = strategic attempt to allow "our" terms to be incorporated 1

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