Whose Terms apply to a Contract?
There is often conflict between two contracting parties having their own sets of terms and conditions where a dispute arises later on and the question arises who’s terms apply? A general rule of thumb is that the party who’s terms are provided last, before the contract is performed, will have priority.
In a situation where a seller makes an offer to sell goods upon its terms sometimes the buyer will accept the offer on their own terms. If the seller then delivers the goods in accordance with the terms of the contract, the buyer’s terms will apply to the sale. The basic rule that applies here is general contract law. The buyer didn’t accept the selller’s offer but made a counter offer on its own terms which was accepted by the seller performing the contract.
We act for a major international luxury car manufacturer and in a bank case we handled a luxury vehicle was repossessed and the buyer was sued for a significant sum of money. Unbelievably he had not even made the first repayment on the vehicle and the judgment against him was substantial. We act for these types of companies and for banks regularly and they all have the best terms and conditions so that every cent spent on legal proceedings can be recovered. We recommend to all of our business clients that in addition to a costs recoverable clause they also have a charging clause in their terms and conditions charging all land with repayment enabling caveats to be lodged.
PPSR Registration Expiry
The Personal Properties Securities Register (‘PPSR’) was seven years old on 30 January 2019. Security interests that have 7 year registration periods will expire on that day unless they are renewed. If they expire without being renewed a new security interest has to be registered which may then rank behind others. Some of our clients are not registering finance leases and hire purchase agreements on the PPSR. They should be registered.