In deciding whether standard terms and conditions were incorporated in a contract for meat storage, the court reviewed case law, including Transformers and Rectifiers Ltd v Needs Ltd, which set out these principles in relation to a course of dealing:
- Where A makes an offer on its conditions and B accepts that offer on its conditions and, without more, performance follows, the correct analysis, assuming that each party’s conditions have been reasonably drawn to the attention of the other, is that there is a contract on B’s conditions.
- Where there is reliance on a previous course of dealing it does not have to be extensive. Three or four occasions over a relatively short period may suffice.
- The course of dealing by the party contending that its terms and conditions are incorporated has to be consistent and unequivocal.
- Where trade or industry standard terms exist for the type of transaction in question, it will usually be easier for a party contending for those conditions to persuade the court that they should be incorporated, provided that reasonable notice of the application of the terms has been given.
- A party’s standard terms and conditions will not be incorporated unless that party has given the other party reasonable notice of those terms and conditions.
- It is not always necessary for a party’s terms and conditions to be included or referred to in the documents forming the contract; it may be sufficient if they are clearly contained in or referred to in invoices sent subsequently.
- By contrast, an invoice following a concluded contract effected by a clear offer on standard terms which are accepted, even if only by delivery, will or may be too late.
The court also noted in the case law and textbook commentary that:
- as well as a course of dealing, in order to imply terms, they would have to be necessary for business efficacy or so obvious as to go without saying; and
- a statement that terms and conditions are available on a website may be sufficient, in the case of a contract between commercial parties.