"Marriage to Fail at Church Steps?"

Can a proposal be made and accepted by conduct? "A nod's as good as a wink to a blind bat" – or is it?

There was a company called Confetti right. It owned a record called "Burnin" right. One of the best garage tracks! Man it was wicked. Everybody wanted it. Anyway, Warners wanted it on one of their compilation albums. They sent a fax with a deal memo marked "subject to contract". Confetti signed it and sent it back. Confetti also sent the CD of the track and an invoice. Warners started producing the album but then, right, Confetti changed its mind. They wrote to Warners to say that they did not want their track to be included. Talk about a jilted bride!

But the judge thought otherwise. He said that:

1. the sending of the invoice and CD was an offer that was capable of being accepted by conduct;

2. "subject to contract" meant just that. The signed deal memo was not a contract (but the conduct of Confetti meant that a contract had been concluded);

3. Confetti had made representations that could not be avoided; and

4. despite the deal memo omitting certain important terms, there was sufficient certainty between the parties to establish a contract between them.

Warner's honour stayed intact!

Points to note:

• contract reached through conduct;
• court adopted purposive approach to the contract; and
• don’t leave your terms of business to be laid down by the court!

If you require any further advice or information about commercial contracts, contact the partners of our commercial team:

Email: hugh.murrell@follettstock.co.uk
Email: gavin.poole@follettstock.co.uk

The above is only a summary of the law and should not be relied upon in place of specific advice.