The Last Shot in the Battle Doesn’t Always Win the War!

Many businesses often rely on their standard terms and conditions.  I know this because I’ve drafted a lot of them, and I’ve ripped quite a few apart as being completely useless and a waste of paper!

Sometimes we have to advise on not just what’s in them, but what happens if both sides have their own standard terms and conditions which conflict. Whose take precedence?  Yours or the other sides!

The usual advice is that the last shot in the battle, wins the war. So if you place an order, saying it’s subject to your terms and conditions, and they accept your order, and say that their acceptance is based on THEIR terms and conditions, their ts and cs will take effect over yours, because theirs came last.

However, nothing in law is ever that simple.  Sorry!  A recent case has highlighted the fact that sometimes that rule doesn’t work.  In that case, there was a degree of ambiguity as to how well either side had communicated their ts and cs to the other, and the Judge wasn’t willing to automatically apply the last shot in the battle rule.

How do you avoid this? Having good paperwork is important but having well trained staff who understand the consequences of, for example, not making sure your ts and cs are attached to all of your paperwork is essential.  It doesn’t matter how beautifully I draft your documents, if they don’t get to your clients at the right time, I might as well have stayed in the pub!

So one answer is just call us, and we’ll send in the cavalry to sort it all out for you.

Kleyman & Co Solicitors.  The full service law firm.  Fighting battles and winning wars.