"Terms and conditions available on request"

Sounds familiar? Rather than supplying their T&Cs as a matter of routine, many suppliers simply inform customers that their T&Cs are available on request. In practice such requests are rarely made. Then things turn sour and the supplier seeks to rely on its T&Cs. The customer (understandably) responds that they never saw the T&Cs and did not agree to them. Therefore, they cannot apply. Who is right?

Whether T&Cs form part of a contract will depend on whether reasonable steps have been taken to draw them to the other party's attention. Although much will depend on the specific facts of a case, in the recent case of Rooney and another v CSE Bournemouth Ltd., the Court of Appeal addressed this issue and ruled on the phrase "terms and conditions available upon request". In that case, the decision went in favour of the supplier.

From a dispute resolution point of view, this sort of litigation can quickly get messy and therefore expensive. It is best avoided. Businesses need to ensure, so far as possible, that their T&Cs are incorporated into their contracts. Relying on T&Cs being available on request is a risky strategy. It is probably safer to make sure that your T&Cs are specifically brought to the attention of customers at an early stage in the pre-contractual negotiations - for example, on quotations and acknowledgement of orders. One point to note is that - at least in the case of a one-off transaction, including your T&Cs in a post-contract document, such as an invoice, will not effectively incorporate your T&Cs into the contract.

To find out more about the best way to ensure that your T&Cs are effectively incorporated into your contracts, please contact Tom Silverwood-Cope or Nick Crook.

Filed: 24/05/2011 21:57:26