Our terms and conditions are available on request

Only on request

It’s not uncommon to see the words “terms and conditions available on request”, or words to that effect, somewhere on a company’s documentation, e.g. an order form, marketing material or correspondence. But where do the directors stand if they sign something that contains these words? Do they bind the company even though they’ve never seen them, or can they safely be considered “out of sight, out of mind”?

At the Court of Appeal

This was considered by the Court of Appeal in the recent case of Rooney v CSE Bournemouth 2010. Rooney(R)owned a Cessna aircraft which CSE was asked to repair. The scope of the work was set out in an order form. At the bottom of this document, in large capital letters, it stated that no work would start “until the order form was signed and returned”. No problems there.

Do you need to ask?

But beneath that was the phrase “Terms and conditions available upon request”. Those terms, amongst other things, excluded CSE’s liability for negligence. But R did not request a copy of them; he simply signed the order form and returned it so that the work to the aircraft could commence.

Damage limitation. Unfortunately, whilst carrying out the repairs, CSE’s engineers failed to secure the engine cowling fasteners. This caused them to become detached during a flight which resulted in damage to the Cessna. CSE did the repairs free of charge but, despite this, R claimed damages of £347,000 for further losses.

It was all in there

CSE referred R to its standard terms which, it said, were “contractually included in the works order form”. R disputed this. Firstly, he argued that this document wasn’t a contract at all. When the court rejected this, he claimed that the wording used by CSE was insufficient, i.e. it had failed to bring its terms to his attention.

The outcome

So who won? Well, it was CSE who were flying high on the way out of the courtroom. The judges ruled that the words used to direct R’s attention to its terms were “clear and reasonable”. The fact that he didn’t ask to see them before signing the order form was entirely his own fault and he was bound by them.

Risk. This case shows that even if a document doesn’t look like a contract, or have the word “contract” written somewhere on it, there’s still a strong risk it’s a binding agreement.

Tip 1. Don’t get caught out by this. If a third party’s documentation refers to their terms and conditions, request a copy and always read them carefully before signing. If a director forgets, or fails to read them, the courts won’t agree that this is lawful grounds to get out of a contract.

Tip 2. If your company wants to refer to its terms as CSE did, i.e. by giving a prompt rather than printing them in full on every document, ensure the language used to do this is clear and precise. This can avoid a potentially costly dispute over whether or not they’ve been incorporated. As the court considered the phrase used in this case to be safe, there’s no reason why you can’t use it too.