CHANGING A BARGAIN BY CONFIRMING IT
| Author | A. J. C. Hoggett |
| Date | 01 September 1970 |
| Published date | 01 September 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01295.x |
CHANGING
A
BARGAIN
BY
CONFIRMING
IT
THE
most recent case to contain some discussion of the use by
businessmen of confirmation notes and the law applicable to
them is
Henry Kendall and Sons
v.
William
Lillico
and
SOM.~
In
that case,
inter alia,
a
contra& of sale was made orally by
Mr.
Golden
on
the Bury St. Edmund's
Corn
Exchange for the sale
of
poultry feeding stuffs to the Suffolk Agricultural and Poultry
Pro-
ducers Association Ltd. (S.A.P.P.A.) by Grimsdale
&
Sons
Ltd.
On
the following day, Grimsdales sent a confirmation
note
to
S.A.P.P.A. which contained
on
its back conditions of sale. As
the parties had
on
many previous occasions made contracts
in
just
such a way, both the
Court
of Appeal and the House of Lords held
that the conditions
of
sale formed part
of
the contract since both
parties were deemed to have contracted
on
that baska
",he use of confirmation notes, however these be des~ribed,~
serves
a
useful commercial function.
It
is obviously convenient
to
have a written record of an oral agreement, and
this
explains their
widespread use in transactions
on
stock ex~hanges.~ They are,
however, frequently used in modern commercial practice to confirm
agreements made, for example, by telephone, telex
or
by travellers.
As the making of contracts has become more standardised, indeed
mass-produced,5 businessmen have introduced
onto
their notes
clauses not expressly agreed upon by the parties. Usually, these
clauses are exemptive of common law liability.
Thus
they may pur-
port to include liability for defective quality
or
liability where
goods are unavailable
'I
or,
as seems common
in
practice,
limit the time within which claims arising out of defective
goods may be made. In the United States at least, it is common
for both parties to send confirmation
notes
containing clauses favour-
ing
their sender, thus
giving
rise to what is
known
as the
"
battle of
the forms."
1
[1968]
a
All
E.R.
444;
in
the Court
of
Appeal [lsSS]
1
All
E.R.
909.
a
The terms
of
sale
were held irrelevant to the main issue
in
the case which won
concerned with
8.
14
of the
8ele
of
Goods
Act
1893
and
s.
2
of
the Fertilirers
and
Feeding Stufps Act
19%.
3
Some
of
the commonest names are: oon6rmation
notea,
bought or sold
notem.
delivery orders, conditions
of
sale or contract notes.
Quacre
whether
an
invoice accompanying gda
can
be regarded
as
B
confirmation
n&
for
the
purpose of
this article
unlm
its tern are incorprded
by
usage or course
of
dealing.
It
is doubtful whether the par01 evidence
rule
could evem appl to
an
invoice
and
it would
only
rarely give
rise
to
an
estoppel,
on
which see gpencer
Bower,
Estoppel by Representation
(bd ed.), pp. 96
et
8q.
See
e.g.
the discussion by Diplack
L.J.
of
the ways
of
doing business
on
standard contracts issued by trade essociations,
[lW]
1
Al,l
E.R.
909,
941-343.
4
On
this
see
Hakbuy's
Laws
of
England
(3rd ed.),
Vol.
96,
pp:
64'2-644.
6
As
in
Kendall
V.
Lillioo,
sm
note
1
supra.
7
As
in
Roe
v.
NQylOf
0918)
87
L.J.E.B.
958.
518
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