The above is a recent verbal reaction to reading a clause relating to notice requirements in a construction contract.

The clause provided for notices under the contract to be given in three particular ways and there is nothing unusual about that type of clause.  One of them was by pre-paid post, another was by fax and the last one was by 'telex'.

Telex, if my brief research on the subject is correct, was a relatively popular way of sending written messages around the world using telephone lines.  It has of course been largely superseded by fax and email and if you look at a picture of what a telex machine looks like, it is easy to see why.  If anyone still has a telex machine, it is unlikely to be taking pride of place in a brightly refurbished office.  Perhaps it has been shunted into a little used cupboard, still connected up, just in case.

So what?  Well the clause was not in a contract from the 1980s as you might have expected, it was from 2012.  And I suspect that neither of the contracting parties owned an operating telex machine.  They probably didn't know what one was either.  But what if one of the parties was wanting to set up something of an ambush on the other (which most certainly does happen) and had details of a telex number that was, at one time, associated with that other?  Sending the notice by an awkward, difficult and possibly unreliable method (in the sense that the other party might not realise a notice had been given) might be an attractive option to gain a tactical advantage.

Contracts are supposed to make things easy to understand, they are supposed to cut out the grey areas and they should only contain clauses that the parties are likely to find useful.  Lifting the wording from a contract that hasn't been updated for the last two decades, as I strongly suspect happened here, is simply inexcusable.  Two parties in all probability turned a blind eye to this clause or simply couldn’t be bothered to raise it with the other, I can't imagine why either of them would have argued to keep it in.  I suspect that the contract also contained some other anachronisms that could have been far more serious, as was the case in William Hare Ltd v Shepherd Construction Ltd in 2009.  In that case a set of standard amendments to a contract had not been updated to include new types of company administration, which meant the contractor was not entitled to withhold sums on the grounds of insolvency when the employer went into administration through one of those new routes and had to pay its subcontractor just shy of £1m.

So do dust off those standard contracts and read them before you enter into them rather than waiting until you need to rely on them.  It is probably worth putting them through an 'annual service' with a lawyer too, it will probably cost less than the annual service on a telex machine...