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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.
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.
Supply of goods and services Act 1982
UTCC Regulations 1992
Consumer Protection and Unfair Trading Reg 2008
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]
? 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
? 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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