Civil Engineering Reference
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outside those hours will become accessible
when the next period of business
hours opens' (Scottish Law Commission Discussion Paper on Formation of Contract
(Disc Paper No. 154, 2012, paragraph 2.17)).
Regulation 11 of the Electronic Commerce (EC Directive) Regulations 2002, while
not resolving the point completely, states that orders (including contractual offers)
andacknowledgementsofreceipt'willbedeemedtobereceivedwhenthepartiesto
whom they are addressed are able to access them'. Regulation 11 applies to parties
who are not consumers.
Beware also relying on the use of email disclaimers as they will not always be suf-
icient;ideallytheywouldrefertoboththeemailandanyattachments.Itmaybe
advisable to spell out the position in the communication itself (whilst there is little
case law on this point, it was briefly considered in
Baillie Estates Ltd
v.
Du Pont (UK)
Ltd
(2009), on which see Section 3.2.4).
…
3.2.4 Battle of the forms
It is common within the construction industry for offers to be made subject to the
offerer's standard conditions of contract (frequently printed on the reverse side of
the offer or appended to it). Difficulties arise where the offeree accepts the offer sub-
ject to the qualification that the offeree's standard conditions will apply. In the ordi-
nary course of events this would undoubtedly constitute a counter-offer requiring the
offerer's acceptance. Where, however, work is commenced prior to the counter-offer
being accepted, a question arises as to whether there was, in fact, a contract and, if so,
onwhoseterms.Whileithasotenbeensaidofthisscenariothatthepersoniringthe
last shot will be successful, it has also been commented that it may be more helpful
to look at the documents as a whole to determine whether the parties have reached
agreement on essential points, notwithstanding differences between the forms, see
Butler Machine Tool Co. Ltd
v.
Ex-Cell-O Corporation
(1979).
The Scottish case of
Baillie Estates Ltd
v.
Du Pont (UK) Ltd
(2009) is interesting
regarding this point. Du Pont sent an email with its commercial proposal on pricing
and delivery, to which Baillie replied 'go ahead'. It was at this point that the contract
wasformed,andnotafewdayslaterwhenDuPontsentitsstandardtermsandcon-
ditions to Baillie. As these were sent subsequent to the contract being formed, they
were not applicable.
It is of course possible that neither set of conditions will apply. The High Court in
Englandsoheldin
GHSP Inc
v.
AB Electronic Ltd
(2010), as it was clear that neither
party would accept the other's standard terms. Notwithstanding the 'last shot' doc-
trine, no formal contractual terms were ever concluded and, in that case, the implied
terms of the Sale of Goods Act 1979 applied. This does not of course mean that this
will always be the outcome of such a battle, but it does highlight a need for greater cer-
tainty over contractual terms prior to commencing works. Another example of this
is
AE Yates Trenchless Solutions Limited
v.
Black and Veatch Limited
(2008). In this
case an invitation to tender specifying a particular standard form (the IChemE Form
of Contract: Subcontract for Civil Engineering Works (the Brown Book)) had been
issued by a contractor, with the sub-contractor issuing a tender in response specifying
a different standard form. The court found that the contractor had, at a pre-contract
