Contract – Terms of Business, Battle of the Forms and Letters of Intent

The buyer (a company that made control systems for vehicles) placed orders with the seller (a company that supplied pedal sensors). Both parties traded on their standard terms of business, the key difference between the two being, as it is usual to expect, the extent of the liability, if something went wrong under the contract. The buyer’s conditions sought to impose unlimited liability on the seller for certain breaches, while the seller’s conditions purported to exclude any liability for consequential loss or damage and restricted its business liability to repair.

The sensors were defective resulting in serious problems, including uncontrolled deceleration and loss of power. The buyer suffered substantial losses as a result, including the cost of inspections and replacement of parts. It sought to argue that the contract was formed on its business terms and sought to recover its losses from the seller. The seller argued that the contract was formed on its terms and that its liability was limited to repair, in accordance with its standard terms, which the buyer had accepted by taking delivery of the sensors; while the buyer argued that the seller’s liability was unlimited (in accordance with its standard terms).

So, the preliminary question before the Court was on which terms the contract between the parties was formed.

In an unexpected decision, the Court decided that, the contract did not include either set of standard terms, because the parties had not reached agreement on their precise wording and there was no conduct that could be interpreted as accepting the other’s terms. The Court, therefore, held that the contract terms were governed by the Sale of Goods Act.

The Court, in giving its decision, summarized some of the key principles from previous cases, where there was a “battle of the forms”:

• The contract must be read objectively;

• In most cases, a contract is formed once the last set of terms is sent and received, without the recipient objecting;

• One party can be found to have accepted the other party’s terms by its conduct, but such conduct must be clear (looking at it objectively) with the intention to accept those terms; simply taking physical delivery of the goods is not enough;

• Where parties have not agreed which set of standard terms applies, the only inference that can be drawn is that, the contract was made on the basis that neither set would apply.

In conclusion, terms must be agreed between the parties before the contract is signed or executed. Even expressed wording in contract terms stating that the standard terms will prevail over others may not be effective where it can be shown that no agreement was reached, whether expressly or by way of conduct.

Another recent decision of the Supreme Court addresses two key points. The first is the need to have agreed contract terms, before work starts under a contract and the second that, where a letter of intent is signed and work starts due to it, that a contract must be finalized as soon as possible after that. In this case, the parties entered into a contract formed by a letter of intent. When the letter of intent expired the work continued on, before the terms of the detailed written contract had been finalized.

The Court in its decision reiterated that in terms of letters of intent, it will not impose binding contracts where none existed and therefore each case will depend on its own facts, taking into consideration what is communicated between the parties by words or conduct. Where contracts are negotiated “subject to contract”, the Court noted that, it will not always infer that a contract has been agreed on those business terms that are “subject to contract”.

However, in this case, the Court decided that the parties had agreed a binding contract and that the binding contract was not subject to contract for the following reasons:

• Given the parties agreement over price, it was unrealistic to infer that the parties did not intend to create legal relations;

• All the essential terms had been agreed and variations were agreed without stating that they were “subject to contract”. The actions and communications of the parties indicated that they had accepted the contract terms and formed a legal contract, without the necessity to require a formal written contract; and

• The parties had negotiated in detail the clauses which comprised the terms as amended and as such the clauses had been essentially agreed and varied.

This case highlights the dangers inherent in starting work before a formal written contract is in place and such letters of intent should always be treated with caution.

However, if a letter of intent is inevitable, this should:

• Clearly specify those contract terms that have been agreed and those that remain outstanding, so that there is no uncertainty over what has or has not been agreed between the parties; and

• State that, no binding contract is to come into effect, except to the extent set out in the letter and that neither the letter nor any work done or payment made under the letter shall be deemed to be a waiver of the requirement to provide a binding contract.

Finally, every effort should be made to finalise the contract as soon as reasonably practicable after the letter of intent has been signed.

This article is for general purposes and guidance only and does not constitute legal or professional advice.

Copyright 2010 Anassutzi & Co Limited. All rights reserved. Information may be shared or reproduced only if accompanied by the author’s name and bio.

Small Business Game, Big Business Win

My neighbors are entrepreneurs at heart. They are part of the 860,000 new small business enterprises that opened doors this year. At the rate they are going they could also be part of the churned small enterprises that will close their doors over the next year if they don’t proactively take preventive measures.

My neighbors represent the vast majority of small business owners entering the market daily. In the beginning they are brimming with bright optimism and bright ideas. By the end they wonder how they could have made it all work as they close doors on yet another opportunity.

What are my neighbors, and small business owners (SBOs) like them doing wrong?

Do small businesses need excess cash flow to make it in this market?

Do marketing mix, core competencies and/or niche marketing spell small business accomplishment?

Well…yes and no.

I don’t think ample cash reserves tell the entire story for how to be a small business success. Cash helps, but it’s one piece to the overall puzzle. I also don’t think complex stats and formal business jargon determine small business success either. It helps to talk-the-talk. It helps even more to walk-the-walk, but again complexity doesn’t help unravel the tangled web of linear progression.

Bottom line, a devotion to realizing and then seizing business opportunities can course an SBO onto the path of growth.

A business with cash that does not do this will falter. Just as a business with a small budget can do this and succeed.

Small companies can play in this business game to garner big business wins.

o Size Matters

Small businesses have the advantage in just that: their size!

Unlike larger corporations, small businesses are postured to agilely and quickly remedy non cost-effective processes, products, and/or services. Also, small businesses can advantageously leverage their span of control as it is more cross functional and less hierarchical than larger competitors. Hence, revisions can be implemented and evident to the consumer before problems become systemically ingrained.

Utilize your business size and its mobility to deliver effective results for your consumers and your employees.

o Dedicate your Wits

While cash flow is a routine focus for business sustenance and growth, do not neglect the need for creative brainpower. As tiring as constant innovation and inventiveness can be when intermingled with ever changing products, services and finances, understand thriving enterprises analyze the market for the best opportunities to meet consumer demand.

Your business is static until you make it dynamic.

o Know Yourself to Know Your Business

Competition is rampant and it can affect sales. Yet, there are enough resources to support the SBO. If you look around at the varying small organizations in a city district, you should be encouraged! For the most part, these businesses offer similar products and/or services as larger companies, yet they still thrive.

Know what you offer and tout your uniqueness. A small business is an external expression of its owner. So just doing what you do is differentiation! Recognize it, and champion it as a unique resource available only through your gateway.

o Listen to the Beat

You don’t have to have expensive customer feedback mechanisms to know what your customers are saying. Feedback comes your way all the time in hushed compliments and verbose criticisms.

Be a pulse chaser! In other words, seek what’s hot. Pulse chasing companies experience business progression and growth beyond the box in which they initially started. Don’t just ask customers if they satisfied. Strive to exceed their expectations. There certainly exist tangent markets of available market share if you’re willing to listen to what that market says.

o Do It Already!

Knowing what to do and not doing it is insanity. The point of business ownership lies in the freedom to mold your ideas into a value-added good or service. Yet, execution is the lacking factor capable of diversifying your product into a money-making entity versus a money-sucking unit.

Implementing other processes and streamlining existing ones are not necessarily easy steps, but such analyses are relevant and can result in longstanding progressive actions. Lean and agile corporations anticipate customer demand, but the battle is won in how they back up their hunch with consistently salable products or services.

o Burn the Midnight Oil

Business is rhythmic.

Hang in there long enough to learn your business’ battle rhythm. Decisions can then be made proactively versus reactively, which gives the SBO an offensive positioning.

The only way you’ll know any of this data, however, is through defining new processes, assessing their relevance and reassessing the overall process for positive repositioning.

And that takes time…so hang in there!

Business Success in 4 Non-Negotiable Steps

As an entrepreneur you may have heard that financial success and growth is preceded by personal growth. The road to success begins with the decision to be successful. Your decision is later reinforced by the mental fortitude to stick to that decision through the highs and the lows that any business will undoubtedly offer.

The following four steps are non-negotiable on your path to success.

1 – Cultivating The Right Attitude is the foremost step in importance for any entrepreneur to master in order to create their first million dollars. I’ll paraphrase a quote by Ford here – Whether you think you can or can not, you are right! When you say “I CAN” you are more than halfway there already.

2 – Having Determination is the next order of business battle. Without determination, an entrepreneur lacks the drive to succeed. One without it will fail to plan, fail to ask for the sale of their product or service, and ultimately fail in their business.

An entrepreneur with an inner drive who is determined to succeed will see business problems as challenges and thrive on finding solutions.

3 – The right attitude and determination are nothing without the third non-negotiable step in business success: Taking Action. Nothing gets done without taking specific action. Sales are not made, progress is not achieved, and success is not had nor celebrated. It is easy to plan and theorize, and talk, but taking action is what pays the bills.

When in doubt, you should take action. Many new entrepreneurs spend the day “aiming” when they should in fact just be “firing” (…to use a shooting analogy).

4 – Last but not least: Seek Your Goals. That is to say, an entrepreneur should have obtainable goals that make them stretch, but not so much that they are totally out of reach. Having business goals forces you to plan, to evaluate, and to re-evaluate in order to achieve business success.

Know that accomplishing 3 out of the 4 non-negotiable steps to business success is not enough. All entrepreneurs must enact all 4 steps in order to attain the business and financial success you work so diligently toward.

Again you must take action to realize your goals coupled with the determination to persevere balanced by the attitude the You Can!

Now Go Get ‘Em!