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Description of Purchasing Contracts

Purchasing Contracts is intended to be of assistance to those whose work is with contracts for the procurement of goods and services rather than yet another contract law textbook.

This second edition contains additional chapters including one on the special rules governing purchasing by public bodies and utilities.

The subjects of misrepresentation, exemption clauses and electronic contracting are amongst those that have been updated and covered in more detail. The bill currently going through Parliament on bribery is also dealt with.

Title Information

ISBN:

9781904905691

Pages:

233 pages

Format:

Paperback

Product Code:

518848

Publisher:

Spiramus Press

Published:

25/01/2010

Press and Industry Reviews

"Graham Fuller's book would be a useful addition to any purchaser s library. It deals in a logical manner with all of the law a buyer is likely to encounter."
- Supply Management magazine

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Customer Reviews from Amazon

About Graham Fuller

Graham Fuller is a visiting lecturer on procurement law and other subjects at the WMG an academic multi-disciplinary unit at the University of Warwick; and a regular presenter at conferences for the Institute of Purchasing and Supply.

As a graduate in law he was called to the bar and practised for seven years until he became Senior Crown Counsel to the Hong Kong Government. He later became Senior Legal Adviser to Rolls-Royce plc, advising on matters including international joint ventures, technology transfers and purchase contracts.

Contents of Purchasing Contracts

Tables of authorities
Preface
About the author

1. Written contracts and the purchaser
1.1 Oral contractsand those made by conduct
1.2 Some contracts have to be in writing
1.3 Commercial purchase contracts
1.4 The benefits of written contracts
1.5 Written contracts and disputes
1.6 The golden rule in writing a contract
1.7 The consequence of having contracts in writing

2. Prior commitment
2.1 The need to place sub-contracts before the prime contract
2.2 Working upon a speculative basis
2.3 A sense of security
2.4 Termination for convenience clauses
2.5 Exclusions from the termination for convenience clause
2.6 Limitations of liability for termination
2.7 Partnership

3. Misrepresentation
3.1 The nature of a misrepresentation
3.2 Rescission
3.3 Bars to rescission
3.4 Damages for misrepresentation
3.5 Different kinds of misrepresentation
3.6 Damages in lieu of rescission
3.7 Summary of remedies for misrepresentation
3.8 Controlling liability for misrepresentation
3.9 Exemption clauses and misrepresentation
3.10 Entire agreement and prior representation clauses
3.11 Effectiveness of prior representations provisions

4. Formation of written contracts and the battle of the forms
4.1 Different kinds of written contracts
4.2 Standard terms of sale and of purchase
4.3 Let battle commence
4.4 Putting standard terms in other documents

5. Negotiating the contract
5.1 The golden rule
5.2 Getting ready
5.2.1 What has already been said?
5.2.2 A team leader
5.2.3 Personalities
5.2.4 Solo negotiators
5.2.5 Whose draft?
5.2.6 How tough should the draft be?
5.2.7 Make sure it all goes in the contract
5.2.8 "Parking" a draft clause
5.2.9 Supporting the troops in the front line
5.2.10 Partnership

6. Simplicity and clarity in contract drafting
6.1 Improving presentation
6.2 20 tips for drafting better contracts
6.2.1 Short paragraphs
6.2.2 Break concepts down by tabulation
6.2.3 The use of different paragraph widths improves the appearance of a contract and makes it reader friendly
6.2.4 Defined terms are useful drafting tools
6.2.5 Certain definitions are unnecessary because of section 61 of the Law of Property Act 1925:
6.2.6 There is no need to state the obvious
6.2.7 Here is another bad habit
6.2.8 Is it better to say
6.2.9 Be consistent
6.2.10 Try to avoid unnecessary work
6.2.11 If the contract is complex a recital may help
6.2.12 Avoid archaic expressions such as:
6.2.13 Signatures
6.2.14 Try to avoid the following:
6.2.15 Consider singulars and plurals
6.2.16 Anxiety expressions
6.2.17 The use of numerals or words to express numbers
6.2.18 Contracts should be expressed in the active and not the passive voice
6.2.19 Keep any choice of law clause simple
6.2.20 Take particular care with notices clauses
6.3 Words may not always bear their dictionary meaning
6.4 Good drafting wins respect

7. The specification
7.1 The function of the specification
7.2 The duty to conform is strict
7.3 Purchase managers cannot ignore the specification
7.4 The draftsman's eight duties
7.4.1 To make it crystal clear to the experts who are responsible for the contract specification that all the purchaser gets for its money is what is set out in the specification
7.4.2 To ensure that the specification is sufficiently definite
7.4.3 To scrutinise closely the specification for gaps
7.4.4 To make sure the specification recognises any peculiarities of the goods and/or services that are being purchased
7.4.5 To see if there are matters contained in the specification which are also covered in other parts of the contract
7.4.6 To consider the special position of specifications for goods which contain references to performance
7.4.7 To be sure that in a contract for services sufficient details of the services are set out in the specification and that it has been made clear to the supplier whether there is anything out of the ordinary
7.4.8 To make sure that the experts have not over-specified the goods or services
7.5 Entire agreement and prior representation clauses
7.6 Conflict and precedence

8. The Sale of Goods Act 1979
8.1 The history of the Sale of Goods Act and its amendments
8.2 Application
8.3 The function of the SGA
8.4 Formalities
8.5 Price
8.6 Conditions and warranties
8.7 Purchaser's acceptance of goods
8.8 Title
8.9 Transfer of title and risk
8.10 Performance
8.11 Other matters

9. The Sale of Goods Act 1979 - description, quality, fitness for purpose and samples

9.1 Correspondence with description
9.2 Quality and fitness
9.3 Liability for quality and fitness only for business sales
9.4 Aspects relating to quality
9.5 Where the condition will not be implied
9.6 Statements may impact on the quality of goods
9.7 Fitness for purpose
9.8 Sales by sample
9.9 Slight breaches of the conditions: restrictions on rejection
9.10 The de minimis principle
9.11 Alternative remedies

10. The Supply of Goods and Services Act 1982
10.1 A statutory framework for contracts not covered by SGA
10.1.1 Contracts for the transfer of title to goods
10.1.2 Obligation to transfer good title
10.1.3 An obligation that goods will correspond with their description
10.1.4 Quality and fitness
10.1.5 Transfers of goods by reference to sample
10.1.6 Slight breaches of the conditions: restrictions on rejection
10.2 Contracts for the hire of goods
10.2.1 Contracts of hire covered by the SGSA
10.2.2 Bailor must have right to transfer possession
10.2.3 Conditions in hire contracts as to description, quality, fitness and samples
10.2.4 Slight breaches of the conditions: restrictions on rejection
10.3 Contracts for the supply of services
10.3.1 Service contracts to which SGSA applies
10.3.2 Service quality
10.3.3 Acting in the course of a business
10.3.4 The duty to use reasonable care and skill is not classified
10.3.5 The service provider does not have to be the best in the world
10.3.6 Time for performance
10.3.7 Price of the service
10.4 Excluding the Act

11. Contracts for services
11.1 Quality
11.2 Service specifications
11.3 Policing service contracts
11.4 Termination rights
11.5 One-off services
11.6 Milestones and periodic reports
11.7 Failure to complete the service
11.8 Late performance
11.9 Subcontracting
11.10 Intellectual property rights
11.11 Fidelity
11.12 Price
11.13 The purchaser's duty to the supplier

12. Exemption clauses and the Unfair Contract Terms Act 1977
12.1 Definition of an exemption clause
12.2 The approach of the courts to exemption clauses
12.3 The Unfair Contract Terms Act 1977
12.4 'Dealing as consumer'
12.5 UCTA only applies where the defendant has a business liability
12.6 Excluding liability for negligence
12.7 Exemption clauses generally
12.8 Standard terms of business
12.9 Exemption clauses relating to title and similar
12.10 Exemption clauses relating to correspondence of goods with description or sample or as to quality or fitness for purpose
12.11 The requirement of reasonableness
12.12 The onus of proof of reasonableness
12.13 International supply contracts
12.14 Choice of law
12.15 Purchasers seeking to rely on exemption clauses
12.16 The value of UCTA in contract negotiations
12.17 Other restrictions on exemption clauses

13. Late delivery - no delivery
13.1 Time of delivery or performance
13.2 Where no time is stated
13.2.1 Different legal effects
13.2.2 Termination for delay
13.2.3 Delivery at a reasonable hour
13.2.4 Time being of the essence
13.2.5 Where only part is delivered
13.2.6 Where the contract provides for instalment deliveries
13.2.7 Contracts for services
13.3 Excusable delay
13.3.1 Excusable delay clauses
13.3.2 Qualifying an excusable delay clause
13.4 A promise to try rather than one to commit
13.5 Frustration of contract

14. Payment
14.1 Advance payments and credits
14.2 The purchaser who fails or refuses to pay
14.3 Liens
14.4 Reservation of title
14.5 Method of payment
14.6 Interest on late payments
14.6.1 Commercial attitudes
14.6.2 The scheme of the Act
14.6.3 Interest on advance payments
14.6.4 Excluding the Act
14.6.5 Avoiding statutory interest by long credit periods
14.6.6 Calculating the amount of statutory interest
14.6.7 Fixed sums in addition

15. Assignment and subcontracting
15.1 Assignment
15.1.1 The history
15.2 Section 136 Law of Property Act 1925
15.2.1 Equitable assignment
15.2.2 Inability to assign due to identity
15.3 Subcontracting
15.3.1 A general right to subcontract
15.3.2 Inability to subcontract due to identity

16. Amendment and Novation
16.1 Contract amendment
16.1.1 The nature of a contract amendment
16.1.2 Amendments and the need for consideration
16.1.3 Oral agreements to written contracts
16.1.4 Amendment clauses
16.2 Novation
16.2.1 Novation agreements
16.2.2 Novation by conduct

17. Privity of contract and the Contracts (Rights of Third Parties) Act 1999
17.1 The doctrine of privity
17.2 Rights and duties
17.3 Exceptions to privity
17.4 Agency as a means of avoiding privity
17.5 The Contracts (Rights of Third Parties) Act 1999
17.6 Crystallisation of third party rights
17.7 Third party is subject to the same defences and rights
17.8 Third parties relying on exemption clauses
17.9 Excluding the provisions of the Act

18. Damages for breach of contract
18.1 Damages in addition to or in place of termination
18.2 The object of damages
18.3 No loss no damages
18.4 Nominal damages
18.5 Remoteness of damage
18.6 Exceptional losses of profit
18.7 Exemption clauses
18.8 Mitigation
18.9 Heads of damage
18.10 Damages for annoyance and distress
18.11 Liquidated damages

19. Other Remedies for Breach of Contract
19.1 Specific performance.
19.2 Injunctions
19.3 Interim and ex parte injunctions
19.4 Damages in lieu of an injunction
19.5 Action for an account
19.6 Modern injunctive remedies=
19.6.1 Mareva injunction ("freezing order")
19.6.2 Anton Piller order
19.7 Rectification
19.8 Remedies of an unpaid seller of goods

20. Dispute Resolution and limitation of actions
20.1 Discussion
20.2 When talks break down
20.3 They're not getting away with it
20.4 Arbitration
20.5 Litigation
20.6 Civil Procedure rules and protocols
20.7 The advantages of arbitration
20.8 Disadvantages of arbitration
20.9 Advantages of litigation
20.10 Adjudication
20.11 Mediation and conciliation
20.12 Limitation of actions

21. Intellectual property rights
21.1 The nature of IPR
21.2 The owner of IPR
21.3 Patents
21.4 Copyright
21.5 Database right
21.6 Designs
21.6.1 UK registered design
21.6.2 EU registered design
21.6.3 Transitional Provisions
21.6.4 Unregistered design right
21.6.5 Unregistered design right in the UK
21.6.6 Unregistered design right in the EU
21.7 Trade marks
21.8 Restrictions on passing off
21.9 A purchaser's rights in a supplier's IPR

22. Confidential information
22.1 The nature of confidential information
22.2 Different kinds of confidentiality
22.3 Trade secrets
22.4 Information needing express protection
22.5 General know-how
22.6 The purchaser and confidential information.

23: Electronic commerce
23.1 Purpose of this chapter
23.2 Definition of e-commerce
23.3 Misconceptions concerning e-commerce
23.4 Offers, acceptances and invitations to treat
23.5 Whose terms apply?
23.6 What happened to Argos
23.7 Framework agreements
23.8 Other considerations
23.9 Electronic Communications Act 2000
23.10 Regulation of Investigatory Powers Act 2000
23.11 Consumer Protection (Distance Selling) Regulations 2000
23.12 Electronic Commerce (EC Directive) Regulations 2002
23.13 Provisions of the Electronic Commerce Regulations

24. Purchasing by Public Bodies and Utilities
24.1 The directives
24.2 Incorporation of the directives into the laws of the UK
24.3 The Public Contracts Regulations
24.3.1 Application
24.3.2 The need to advertise
24.3.3 The extent of the need to comply
24.3.4 Different procurement procedures
24.3.5 Choice of procedure
24.3.6 Minimum Timescales
24.3.7 Excluded procurements
24.3.8 Standstill periods
24.3.9 Framework agreements
24.3.10 Ineligibility for award
24.3.11 Basis for contract award
24.4 The Utilities Contracts Regulations ("UCR")
24.4.1 A more relaxed regime
24.4.2 Thresholds
24.5 The New Remedies Directive

25. Purchasing abroad
25.1 Choice of law
25.2 International contract law
25.3 Choice of jurisdiction
25.4 International arbitration
25.5 Delivery
25.6 Export licences
25.7 Payment
25.8 Legal personality
25.9 Language

26. Ethics in purchasing
26.1 Duties of an employee as the employer's agent
26.1.1 Secret profits
26.1.2 Safeguarding property
26.1.3 Conflicts of interest
26.1.4 Diligence
26.2 Criminal liability
26.3 New laws
26.4 Corruption and codes of conduct
26.5 An anti-corruption culture
26.6 The whistleblowers' charter

APPENDIX 1: Selected cases from the law of contract
APPENDIX 2: Damages - betterment or compensation?
APPENDIX 3: Parking on the pavement
APPENDIX 4: Regus - a case study

Index