In answering this Q&A we have limited our research to cover commercial contracts between businesses and conducting our research. We have focussed on whether a binding agreement exists between the parties, even though they have not signed anything, or the signed agreement is not available. If services are provided in the absence of a written contract, the court will seek to determine whether a contract exists for the performance of which the supplier should be paid. The court could either find: (i) that a contract exists under which the supplier must be paid; or (ii) that no contract exists but the law of restitution may apply. In order to determine whether a contract exists, the court would apply the classic principles of contract formation: offer and acceptance; consideration; intention to create legal relations and certainty, by examining the behaviour of the parties and any communication between them both before

Insolvency set-off operates automatically and is mandatory. This means that insolvency set-off cannot be contracted out of by the parties involved,

For the purposes of this Q&A we have assumed the contract is a standard business-to-consumer contract. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013/3134 requires traders to provide certain information to consumers in relation to on-premises, off-premises and distance contracts concluded between them. SI 2013/3134, reg 9, Sch 1 specify the information that a trader must provide to the consumer before entering into an on-premises contract (ie the main characteristics of the goods or service, trader’s identity and total price) whereas SI 2013/3134, reg 10, 13 and Sch 2 set out the information that must be provided in relation to an off-premises or distance contract (ie delivery arrangements, cancellation rights). Regulations 12 and 16 (which relate to off-premises and distance contracts respectively) require the trader to provide the consumer with a signed copy of the contract or confirmation of the contract

In answering this Q&A, we have assumed that the contract in question is a business to business (B2B) contract. It is crucial that exclusivity provisions are enforceable. Many contractual disputes centre on what the contract means. There is no simple set of rules to follow in respect of how contracts may be construed and interpreted. Much will depend on the individual facts of the case. However, over the years a considerable body of case law (and some statute) has evolved which has set some parameters and guidelines for the approach to be taken. For bargains

Law360, London: In the judgment handed down on 31 January 2025 in R v. Guralp Systems Ltd, the Court of Appeal held that the Serious Fraud Office (SFO) can apply to the court to terminate a deferred prosecution agreement (DPA) after the date upon which it was stated to come to an end. The judgment shows that the courts' approach to DPAs is governed by the rules of contract and that their provisions are interpreted following the same principles as any commercial contract.

This Q&A refers to a B2B contract concluded online. General principles of contract law apply equally to contracts formed online. In relation to incorporation of terms into e-commerce contracts, to establish that express terms have been incorporated into a contract, the party seeking to rely on them must show that either the other party has specifically agreed to or knew of the terms (eg by showing a signature to them) or that it has done what is reasonably sufficient to give the other party notice of them (before formation of the contract). This will be a question of fact in each case. See Practice Notes: Contract interpretation—express terms in contracts and Standard terms and conditions—incorporation. In an e-commerce context, the issue of incorporation is most often discussed in the context of terms which are set out on separate web pages, in particular: • where click wrap terms

The Q&A assumes that: • the right to terminate in question is a general unqualified right to terminate early for convenience and not for breach, insolvency or other particular cause • this is a business to business rather than business to consumer contract If there is a general express right to terminate a contract early (ie, a ‘termination for convenience’ provision, perhaps on x days’ notice), it would be necessary to assess: (i) if any express provisions directly required reasons to be given; (ii) if not, whether there are any less direct express provisions in the agreement which could be construed as potentially affecting the right to terminate and/or to require reasons to be given (eg any general duties); and (iii) if there could be an implied term which requires reasons to be given (and that the reason

Case study A contract for sale conditional on the buyer obtaining planning permission provides that 'If the condition has not been satisfied by the Long Stop Date this contract will end, but without prejudice to the rights and remedies of either party in respect of any antecedent breach'. The buyer has not used reasonable endeavours to obtain the planning permission. Does the seller have any recourse against the buyer for wasted legal costs or any other contractual remedies? Reasonable endeavours, best endeavours and reasonable endeavours An obligation to use best endeavours requires that the promisor takes all those steps in their power which are capable of achieving the desired result, in this scenario the granting of planning permission. An obligation to use best endeavours is the same as an obligation to use all reasonable endeavours. However, an obligation

The placement of clauses providing for nominal consideration is used in some contracts to fulfil the requirements of consideration. Nominal consideration is the payment of a small amount that is still sufficient for legal purposes but 'nominal' in that it would not be adequate in any commercial sense. A sum of one pound sterling is commonly indicated as the nominal

Construction analysis: On 16 October 2024, the Joint Contracts Tribunal (JCT) published the 2024 editions of its Major Project, Constructing Excellence, and Prime Cost Building contracts, along with their associated guides and sub-contracts. In this analysis, we focus on the Major Projects contract and sub-contract, and look at how these differ from their 2016 equivalents.

For guidance as to how the courts interpret contracts generally, see Practice Note: General rules of contract interpretation—summary and Formation and interpretation—overview. In the context of assignments, see: • Practice Note: What constitutes a valid assignment of a contract? which sets out the requirements for a valid assignment—whether one taking effect in law or in equity.

Depending on the particular situation, there are a number of options that may be open to a contractor in this position. However, it is important to note that many of these options will be subject to negotiation/discussion with the employer and therefore likely to depend upon the parties’ respective negotiating positions. Precedents and examples are suggested below for many of the options which, even if not required in their entirety, could be adapted or contain relevant clauses for the contractor’s specific scenario. Deadline for acceptance of tender Where a contractor is simply submitting a tender, but the contract may not be entered into for a period of time, it is possible to specify that the prices are valid for acceptance until a fixed date (or a certain event occurs), after which they cannot be guaranteed and are subject to renegotiation.