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How to get the contract you want by Dispute Avoidance Planning




The courts and arbitrators will enforce the law. The law and the judges will enforce any contract that it is proven to exist between the parties even if that contract was impossible to carry out. So the contract is an extension of and as good as the law for the purposes of your case. That is why admonitions such as read the fine print of the contract, keep a note of telephone conversations at the time (especially if you are being promised that you will receive some benefit or not suffer some harm if only you will enter into the deal) and when writing letters to keep copies, probably means the fighting to get what you believe you are entitled to will not be too difficult.

But do not just depend on the law to achieve your rights. Take care in the process of setting up a deal. Be careful who you do business with. Not everyone is as straightforward as Marks & Spencer. If the deal is too good to be true it probably is. When you do create a contract it may be in writing, oral or a mixture of both. Perhaps it is worthwhile to set out the basis of a contract in English law, qualified like everything else here by the words at the bottom of our home page.

A contract
Goods in a shop window or a catalogue (usually) are an invitation to make an Offer.
An Offer is "please supply" in some form. Anything other than yes (we will supply) is a counter-offer. Yes (we will supply) is an Acceptance of the last Offer or counter-offer.
The fine print that applies is that with the last Offer or counter-offer.
The contract is formed, as the lawyers say, with the Yes of Acceptance and any fine print with the acceptance is too late as it is after the contract is formed.
Yes we will supply subject to our fine print is a counter-Offer.
Doing nothing but taking the supply after a "yes we will supply subject to our fine print" amounts to an acceptance of that counter-Offer and its fine print, so be warned.

The above is an over-simplification that it does not even take a good lawyer to fault - but then that is their business. In business what is known as "The battle of the forms" takes place in order to get your fine print in as an offer last before the other side gives an unequivocal yes. It's quite a game really.

Unfair Contract Terms, Merchantable quality, (and since 3 January 1995) Satisfactory quality and Fitness for purpose are all outside the scope of these notes. We have found the loose leaf "Croner's Buying and Selling Law" from Croner.CCH Group Ltd (020 8247-1176) a good businessman's guide and explanation of the law on all these and other points. A copy of the loose leaf book is also supplied on disk.

The Dispute Avoidance Planning point is to make sure that the contract gives you what you thought you were going to get. Take care because the fine print will certainly say in its own legal way that "All prior bets are off".


This material last updated 3 November 2000.

 

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                    This material last revised 4 November 2001.