Can documents be incorporated into a contract by reference?

For the purposes of this Q&A we have assumed the contract is a business-to-business general commercial deed. Different considerations may apply for a business to consumer deed.

Issues to consider when determining whether a document which is referenced in the definitions section of a deed constitutes part of that deed or not, will depend upon a number of factors, including:

1. •

   whether the remaining drafting of the deed provides for that defined document to form part of the deed ie does the deed provide that such document is ‘incorporated by reference’ (or similar)?

2. •

   whether the remaining drafting of the deed provides for the parties to comply with the obligations set out in the defined document

3. •

   whether the defined document is also attached as an annex, appendix or schedule to the deed, and whether the main provisions of the deed specify that such annex, appendix