Terms and Conditions "available on request"
11 February 2011
A recent case put a new twist on the age old question of whether one party`s terms and conditions apply to a contract, sometimes known as ‘the battle of the forms`. This issue can be of crucial importance because a customer`s claim that might otherwise succeed can fail under "pro-supplier" terms and vice versa.
The Defendant (CSE) maintained the Claimant`s (Rooney) aircraft. CSE carried out the maintenance work after Rooney signed off a work order that was printed on CSE`s paperwork. This included at the foot of the page just below the signature box the words "Terms and Conditions available on request". The terms were not, as if often the case, printed on the back of the document. A dispute arose and the parties could not agree whether this should be governed by CSE`s standard terms of trading.
Rooney argued that the wording was too vague to incorporate CSE`s terms into contract - it did not for example say "This order is subject to our terms of business". The court disagreed, but not until the case went all the way to the Court of Appeal. The Court decided that although the wording was unhelpful, taking into account all the background facts a reasonable man would understand the words to mean that CSE`s terms applied to the contract.
Even though CSE was ultimately successful a lot of time and money was incurred in reaching this result, which would have been avoided if the wording on the original work order had been clearer or, better still, the terms themselves were attached to the order.
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