Battle of the forms at Fenland Bakehouse
Fenland Bakehouse Ltd ordered a refrigerated delivery van from Coldchain Conversions Ltd. Fenland's purchase order, printed on its own form, stated the price as £48,000, delivery by 1 March, and that the order was 'subject to our conditions on the reverse, which prevail over any terms you propose'. Coldchain replied by email: 'Delighted to accept. Delivery will be as per our schedule of works in April. Our standard conditions apply and are printed on the reverse of our invoice.' Nobody signed or returned anything. The van arrived on 22 April; its refrigeration unit failed within a week and £6,200 of Fenland's stock spoiled. Coldchain's conditions exclude liability for delay and for consequential loss, permit a 12% price escalation for steel costs, and state that no variation is effective unless signed by both parties. Separately, on 3 April Fenland's managing director orally agreed to pay an extra £1,500 'to throw in' a second shelving rack, which Coldchain's original quotation had already specified as standard.
1. Whose standard terms, if either party's, govern this contract, and can Coldchain rely on the 12% escalation clause?
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Coldchain's email did not accept Fenland's offer on Fenland's terms; accepting 'subject to our standard conditions' is a counter-offer, the classic analysis in Butler Machine Tool v Ex-Cell-O. Fenland never signed the acknowledgement, so the contract was completed by conduct when Fenland accepted delivery in April. On orthodox reasoning the last shot wins and Coldchain's conditions apply, because Fenland's 'which prevail' wording never became a term it could enforce.
A term must nevertheless be reasonably brought to the other party's notice before or at the time of contracting (Olley v Marlborough Court). Here the conditions were only referred to in the email and printed on an invoice delivered with the van. A 12% price escalation is unusual and onerous, so the more demanding notice standard in Interfoto v Stiletto applies. If the clause was not flagged in the email, a court is likely to hold it unincorporated and the price stays at £48,000. If it was clearly flagged, it is incorporated and Coldchain can escalate. Advise Fenland to argue non-incorporation and to check exactly what the email said.
2. Can Fenland recover the £6,200 for spoiled stock and its losses from late delivery?
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The van was sold in the course of business, so sections 13–15 Sale of Goods Act 1979 imply terms that it matches its description and is of satisfactory quality and fit for purpose. A refrigeration unit failing within a week is a breach. The £6,200 is not the price of the defective van but consequential loss flowing from that breach.
Coldchain will rely on its exclusion clauses. Because both parties deal in the course of business, section 6(3) UCTA 1977 allows liability for sections 13–15 to be excluded only so far as the term is reasonable, judged under section 11 and Schedule 2: relative bargaining strength, whether the buyer was induced to agree, whether it knew of the term, and whether insurance was practicable. A clause that leaves the buyer with no effective remedy for a defect going to the heart of the contract is vulnerable, and Fenland's best argument is that the van's whole purpose was refrigeration.
The delay exclusion is more likely to survive: a commercial buyer can usually arrange cover for late delivery, and the parties were of equal bargaining power. Expect the delay claim to fail and the spoilage claim to turn on how clearly the clause was drawn and notified.
3. Is Fenland contractually bound to pay the extra £1,500 for the second shelving rack?
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A variation of an existing contract needs consideration. The rack was already in Coldchain's quotation, so promising to pay more for something Coldchain was already bound to provide is not supported by fresh consideration: the existing-duty rule in Stilk v Myrick applies. Williams v Roffey would only help Fenland's counterparty if Coldchain had done something beyond its existing obligation that conferred a practical benefit, and if there were no duress or fraud; on these facts there was no additional work at all.
Independently, Coldchain's standard conditions contain a no-oral-modification clause. In MWB v Rock Advertising the Supreme Court held such clauses are effective, so even a promise supported by consideration could not be varied orally. That clause is itself subject to the reasonableness regime only if it falls within section 3 UCTA, and a straightforward anti-oral-variation clause will normally pass.
There is also no route through promissory estoppel, which suspends rather than creates obligations and cannot found a cause of action. Advise that the £1,500 is not payable; if it has already been paid, Fenland can recover it as a payment made without consideration.