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Incorporation of Contractual Terms by Reference

by Richard Manly

Richard Manly SC

A term may be incorporated into a contract by reference to another contract or document if there is an express or implied agreement to that effect, provided the term is not inconsistent with the contract into which it is alleged to have been incorporated.

It is quite common for parties to record the bare essentials of their contract in a document and for that document to refer to, and incorporate, a set of terms, such as the standard form of a trade association, or the standard terms of one of the parties.  However, the incorporation must be the subject of express or implied agreement, and a communication purporting to accept an offer will not incorporate terms as set out in a contract note where these differ from the terms of the offer.  The approach may also be used to incorporate the terms of another contract related to the transaction.

In this paper, Richard Manly SC examines the principles relating to the incorporation of such terms, and reviews relevant decisions. Further, in the second paper, Richard reviews the recent English decision of Habas Sinai Ve Tibbi Gazlar Isthisal Endustri As v Sometal S.A.L (2010) EWHC 29 (Comm).

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