Civil Engineering Reference
In-Depth Information
see
Amec Capital Projects Ltd
v.
Whitefriars City Estate Ltd
(2003) and
Hackwood Ltd
.
The use of the word 'pending' was indicative of a state of preparation only.
In trying to establish whether a contract does in fact exist, the courts look at corre-
spondence between the parties and the conduct of the parties, see the Supreme Court's
comments in
RTS Flexible Systems
.heconductofthepartiescouldevenleadtoa
conclusion that an agreed prerequisite to the contract being formed had been waived
(such as a clause in the letter of intent requiring the parties to sign the contract as in
RTS Flexible Systems
). This was effectively confirmed in
Ampleforth
where the TCC
said that even
'[the] fact that the parties have been dealing on a 'subject to contract basis'
does
notofitselfexcludethepossibilitythatthetimewillcomewhenthenecessaryimpli-
cation of their conduct is that they have waived the requirement of a formal written
contract.'
…
In
Hackwood Ltd
theletterofintentstatedthattheJointContractsTribunal's(JCT)
conditions'willbe'thebasisofthecontract,andtheTCCheldthatsuchareference
was sufficient to incorporate the standard form save to the extent that such terms
were inconsistent with the terms of the letter of intent, notwithstanding that the
appendix and other project-specific data were not yet agreed. If relevant information
was missing (for example, the amount of liquidated damages), then that mechanism
only would fall away.
Notwithstanding the analogy with promise, a letter of intent may also be construed
as an offer capable of being accepted, depending on its terms, see
Uniroyal Ltd
v.
Miller & Co. Ltd
(1985) and
Mowlem plc (t/a Mowlem Marine)
v.
Stena Line Ports Ltd
(2004).Indeterminingwhetheranoferhasbeenmade,thetermsoftheletteritselfare
crucial.
3.6 Incorporation of terms by reference to another document
Generally, reference to a particular form of contract will be sufficient to incorporate
its terms. Reference can be oral, but it is preferable that it is in writing (though not
conclusive, see
Sidney Kaye, Eric Firmin & Partners (a firm)
v.
Bronesky
(1973)). An
agreement that a contractual relationship will be governed by reference to a partic-
ular form of contract will be sufficient to incorporate those terms into that contract,
subject to the conditions referred to being readily identifiable or at least identifiable
with reference to common industry knowledge, see
Modern Building Wales Ltd
v.
Lim-
mer&TrinidadCo.Ltd
(1975). Thus, reference to a sub-contractor's order being 'in
accordance with the appropriate form for nominated sub-contractors RIBA 1965 edi-
tion' was sufficient, after evidence had been led to show that, while a contract formally
called 'RIBA 1965 edition' did not exist, the term was commonly used in the building
trade to refer to the 'green form'. See also
Aqua Design and Play International Limited
v.
Kier Regional Ltd
(2002), as to whether an amended or unamended standard form
hadbeenincorporated.
