When is a contract not a contract

When is a contract not a contract

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rich888

Original Poster:

2,610 posts

198 months

Wednesday 25th February 2015
quotequote all
I'm no solicitor, but as far as I'm aware (and correct me if I'm wrong) in contract law a contract is agreed when two parties, as in buyer and seller, agree at a price offered by the seller and accepted by the buyer.

Example being seller offers item or service for £100 and buyer accepts.

So what happens in my case when after much haggling and reduction of price, the seller offers said advertising at a reduced price to list price (after speaking and authorised by the manager) which the buyer then accepts, then a few days later the seller emails the buyer containing a link to click to confirm and agree to additional number of terms and conditions before the advert will be accepted.

As far as I understand contractual law, the initial offer by the seller had been accepted by the buyer, so any additional terms and conditions is now irrelevant.

Bottom line is the advertising manager of the magazine now says the sales rep who agreed to the advert at the price agreed no longer works for the company and the contract hasn't been accepted because she doesn't work there any longer and I didn't click the link containing the additional advertising terms and conditions which were never mentioned in the original phone call.

Now if additional terms and conditions can be added after agreement of the contract, surely I can add additional terms and conditions, which is why offer and acceptance are elements required for the formation of a legally binding contract or else the initial offer and acceptance may end up in a never ending offer accept loop.

The manager is adamant that since he works for a large global marketing company that unless I click on the email link and accept their now additional terms and conditions my advert will not be placed in their publication.

I'm not actually that bothered because Google is now my friend, but what annoys me intensely is the fact that these people can initially agree on terms of the advert and price via the phone calls and emails, then a few days later, impose additional terms and conditions not originally agreed with the click on the link, then if you don't agree to click and accept they just pull your advert.

Any solicitors care to put their view forward on contract law offer and acceptance...?

un1corn

2,143 posts

136 months

Wednesday 25th February 2015
quotequote all
When it's ajar?

getmecoat

Red Devil

13,055 posts

207 months

Wednesday 25th February 2015
quotequote all
IANAL, but I'm pretty sure the key issue is the point at which the contract is formed.
Does this help? - http://www.drukker.co.uk/publications/reference/co...

Awaits the arrival of BV... smile

ging84

8,828 posts

145 months

Wednesday 25th February 2015
quotequote all
Not this st again.
If you were offered a job for a certain salary, and accept it, would you then throw a bh fit when they asked you to sign a contract?
This is the problem with oral contacts, the full terms are not laid out, one side may assume their standard terms and conditions apply, the other side may have thier own set of assumptions, do you really want to go to court and have a judge decide if it is reasonable for them to expect you to agree to thier terms and conditions, because I don't think it would go how you expect, or no one would ever sign the terms and conditions for anything.

Steve H

5,224 posts

194 months

Wednesday 25th February 2015
quotequote all
swerni said:
The price they offer is an invitation to treat
You then make the offer to purchase
They accept or reject it.
I agree with this but I think the OP is suggesting that the verbal acceptance of the price by the rep (after confirming with his manager) should be enough to commit them to the contract.

I'm inclined to think he's right about this although there would be some implied terms in most verbal contracts; when buying advertising I would think that accepting the sellers standard terms of business would be included in this (so long as those terms are reasonable and normal for the industry in question).

If this is the case and if the terms are normal it's the OP that may be in breach for not ticking the box rather than the seller for refusing to continue.

Bluebarge

4,519 posts

177 months

Wednesday 25th February 2015
quotequote all
Unless you have evidence of this oral cotract you are wasting your time. Whether these additional terms form part of the "contract" depends on whether they were brought to your attention before the "contract" was made. This could be by way of posting them on a website (if sufficiently visible) or in an order form. A "contract" also has to be sufficiently certain to be binding and there has to be some consideration passing. Phoning up and saying "how much for a half-page ad, mate?" and getting a price, may not be enough to form a contract and you would expect it to be subject to additional terms as to payment, whether the advert's content is lawful (a call to join ISIS may be frowned on)etc.

Most people have standard terms of business so I'm not sure why this is a surprise to you. From your post it doesn't seem as if they tried to alter any of the terms you agreed with the rep over the phone, just added additional ones.

Edited by Bluebarge on Wednesday 25th February 10:14

rich888

Original Poster:

2,610 posts

198 months

Wednesday 25th February 2015
quotequote all
A little bit of past history:

We've been advertising in the magazine for many years, it has changed owners several times over this time-period.

In the past we have just received a quick call from the rep to ask whether we wanted to run the ad again for another 12 months period and this has worked just fine. There have been a few lapses in advertising through the years when they have tried to increase the price of the ad at which point we have declined their offer.

On this particular occasion the previous 12 months advertising had finished so the rep phoned up to ask whether we wanted to run the ads again for another 12 months, then tried it on with the advertising rate to which I declined. She rang back a few hours later after having discussed the lower rate with her manager at which point we came to an agreed price per month for 12 months. She said she would confirm the order with me via email.

Said email was received a few days later containing a link which I had to click on for the order to be accepted.

I ignored this because that wasn't what had been agreed over the phone.

A few days later she was on the phone again pestering me to click the link to accept their long winded terms and conditions, at which point I said no.

Fast forward a few weeks and her manager is on the phone telling me that the rep no longer worked for the company and although they had placed the first advert in the magazine, no further ads would be placed until I accepted their T & C, to which I replied I would not be doing.

At the end of the day I'm not bothered whether the advert runs or not because most of our customers use Google nowadays, but what I don't like is the fact that they can force customers to accept T & C after the deal has been done.

And apologies if this type of thread has been posted many times before, I did have a trawl through previous posts but didn't see any.

As for that sarcastic reply from un1corn "When it's ajar?" very droll, made me laugh.

Thoughts from BV would be much appreciated, I happen to enjoy reading his dry wit on here wink

SK425

1,034 posts

148 months

Wednesday 25th February 2015
quotequote all
What Ts & Cs did you think applied? Nothing beyond the content of your telephone conversation? The same Ts and Cs as had applied last year? Something else?

trashbat

6,005 posts

152 months

Wednesday 25th February 2015
quotequote all
swerni said:
"She said she would confirm the order with me via email.

Said email was received a few days later containing a link which I had to click on for the order to be accepted."


You didn't agree the terms no contact exists.
A contract including those T&Cs doesn't exist. It's not necessarily true that no contract exists at all.

Bluebarge

4,519 posts

177 months

Wednesday 25th February 2015
quotequote all
trashbat said:
swerni said:
"She said she would confirm the order with me via email.

Said email was received a few days later containing a link which I had to click on for the order to be accepted."


You didn't agree the terms no contact exists.
A contract including those T&Cs doesn't exist. It's not necessarily true that no contract exists at all.
They agreed a price subject to a confirmation e-mail. That confirmation e-mail required acceptance of T's & c's to form a contract. No clicky so no contract. The phone call was evidently an invitation to treat and was expressed to be so on the call.

The OP has also spent longer typing on this thread than it would have taken to read the standard terms.


allergictocheese

1,290 posts

112 months

Wednesday 25th February 2015
quotequote all
trashbat said:
contract including those T&Cs doesn't exist. It's not necessarily true that no contract exists at all.
What effect do you believe the magazine printing the advert has had on the issue of whether a contract exists or not? I might argue their conduct in printing the ad affirms the contract.

trashbat

6,005 posts

152 months

Wednesday 25th February 2015
quotequote all
allergictocheese said:
trashbat said:
contract including those T&Cs doesn't exist. It's not necessarily true that no contract exists at all.
What effect do you believe the magazine printing the advert has had on the issue of whether a contract exists or not? I'd argue their conduct by printing the ad affirms the contract.
I'm not a lawyer, but that's Contract Law 101: that you can accept a contract through your actions rather than the formalities.

http://en.wikipedia.org/wiki/Brogden_v_Metropolita...

allergictocheese

1,290 posts

112 months

Wednesday 25th February 2015
quotequote all
Apologies, I meant to quote another post above yours.

JustinP1

13,330 posts

229 months

Wednesday 25th February 2015
quotequote all
rich888 said:
Fast forward a few weeks and her manager is on the phone telling me that the rep no longer worked for the company and although they had placed the first advert in the magazine, no further ads would be placed until I accepted their T & C, to which I replied I would not be doing.
I'm not a lawyer, but I did study Law as part of my joint degree, and specialised in contract law.

I'll go against the grain here. The above is the key point. You have a contract.

Communicating acceptance in writing is one way to accept an agreement, but also actions can. For example, if you ask a taxi driver through his window how much a trip is, and he tells you, and you get into the back of the car, saying nothing, your actions would be deemed acceptance.

So, if they've run the advert after you rejected the additional terms, then those terms are not incorporated into the contract. You could of course have chosen to accept the modification, but you have no reason to.

As it happens, the very last time we advertised in a magazine, exactly the same thing happened. I asked a specific question about where our advert would be, because that is fundamentally important to the success, and it was confirmed it would be in the right section. It wasn't, and it was a waste of money, disaster.

They referred me to their terms which essentially said that anything quoted to us before the supply of the written terms is not binding, and they can't guarantee where an advert may be. The manager was very smug in informing me this, until we confirmed the date and time that these terms were sent, and it was clearly after the contract was formed, and the terms were added as like an afterthought.


There's the technical analysis, but the next question is enforcing it. You might need some negotiation here.

The issue that it's an ex-employee is a red herring, a bit silly. I'd be asking him if you sent over your terms next week whether he would agree to them now... What are the terms that are unacceptable?

Edited by JustinP1 on Wednesday 25th February 11:22

vxr8mate

1,654 posts

188 months

Wednesday 25th February 2015
quotequote all
So, terms can be sent after the order, so long as they don't vary or contradict any terms arranged arranged prior?

JustinP1

13,330 posts

229 months

Wednesday 25th February 2015
quotequote all
vxr8mate said:
So, terms can be sent after the order, so long as they don't vary or contradict any terms arranged arranged prior?
Well in that case, it would be simply a copy of what was agreed previously. smile

You can ask the other party to modify the contract, or indeed agree to simply make a new agreement, but they don't have to accept.

Sheepshanks

32,529 posts

118 months

Wednesday 25th February 2015
quotequote all
rich888 said:
As far as I understand contractual law, the initial offer by the seller had been accepted by the buyer, so any additional terms and conditions is now irrelevant.
I agree with you, unless it was pointed out that the offer was subject to standard T's & C's etc.

The $64,000 question though, is: what are you going to do about it?

JustinP1

13,330 posts

229 months

Wednesday 25th February 2015
quotequote all
Sheepshanks said:
rich888 said:
As far as I understand contractual law, the initial offer by the seller had been accepted by the buyer, so any additional terms and conditions is now irrelevant.
I agree with you, unless it was pointed out that the offer was subject to standard T's & C's etc.

The $64,000 question though, is: what are you going to do about it?
Yes, my only caveat to my assertion is that there is contract in place would be if the OP and the magazine had built up a pattern of trading whereby every time he booked an advert over the phone it was subject to confirmation of terms by email.

The argument against that is that the magazine went ahead and printed the advert anyway.

trashbat

6,005 posts

152 months

Wednesday 25th February 2015
quotequote all
It can't be long now until the Carbolic Smoke Ball makes its appearance biggrin

Sheepshanks

32,529 posts

118 months

Wednesday 25th February 2015
quotequote all
swerni said:
Sheepshanks said:
rich888 said:
As far as I understand contractual law, the initial offer by the seller had been accepted by the buyer, so any additional terms and conditions is now irrelevant.
I agree with you, unless it was pointed out that the offer was subject to standard T's & C's etc.

The $64,000 question though, is: what are you going to do about it?
Don't mean to be rude, neither of you appear understand the fundamentals of contract law

The offer isn't made by the seller, it's made by the buyer.
The seller then accepts or rejects the offer

What you think is the offer by the seller isn't, it's an invitation to treat.

http://en.wikipedia.org/wiki/Pharmaceutical_Societ...
You'll probably turn out to be an expert, but that's not how normal B2B transactions work, and it certainly isn't if you want to develop an on-going relationship.

Seller makes an offer, there's some back and forth, buyer accepts. It can all get very random if everything is verbal. Bigger companies specifically exclude anything said verbally by one of their employees - but it's always occurred to me that the customer probably wouldn't know that in advance.