One of the first issues to consider when taking steps to put a contractual arrangement in place is to ensure there is a valid contract which is capable of being enforced. The Practice Notes in this subtopic consider the key elements for determining whether an enforceable contract exists, including:
offer
acceptance
consideration
intention to create legal relations
certainty
capacity, and
authority
The Practice Note: Forming enforceable contracts—offer describes the characteristics of a legally binding offer to contract: an intention to be bound objectively assessed. It also considers offers versus invitations to treat, unilateral offers, heads of terms and offers ‘subject to contract’, as well as how an offer can be terminated by withdrawal of the offer, rejection of the offer, lapse of time terminating the offer or on the occurrence of a specified condition.
A contract will only be capable of being enforced if it has been accepted.
The Practice Note: Forming enforceable contracts—acceptance describes the characteristics of a legally binding acceptance to contract and considers how an offer can be accepted: acceptance of
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The Cabinet Office has updated Procurement Policy Note 010: Procuring steel in government contracts (PPN 010), which provides in-scope organisations with guidance on steel procurement in government projects under the Procurement Act 2023 (PA 2023). PPN 010 applies to central government departments, their executive agencies and non-departmental public bodies when awarding public contracts (as defined by PA 2023, s 3), other than special regime contracts (as defined by PA 2023, s 10(6)), where steel is being procured directly or indirectly (relevant steel procurement). Other contracting authorities are encouraged to consider applying the best practice set out in PPN 010, as appropriate, where they do not have equivalent measures in place. PPN 010 provides guidance on policies, tools and methodologies relating to the design of relevant steel procurements and clarifies the scope of reporting requirements on origin data forming part of the annual steel data return to the Department for Business and Trade. PPN 010 has been updated to include an example contract clause and actuals data template for the associated steel product and origin data requirements. PPN 010 has also been updated to reflect terminology introduced by PA 2023 and the Procurement Regulations 2024, SI 2024/692. For procurements commenced before the PA 2023 go-live on 24 February 2025, authorities should continue to refer to PPN 04/23.
Commercial analysis: The English High Court has provided further guidance on the interpretation of ‘no waiver’ clauses in a recent decision. The backdrop to this decision was a sanctions related dispute about the termination of a currency swap agreement between two banks, one of which was Russian, the other English. The agreement had a dispute resolution clause where the forum was arbitration unless the English bank gave notice that a dispute should be heard by the English courts. Pamela Vassil, lawyer at A&O Shearman, examines the court’s decision.
Details of updates to HMRC import, export and customs guidance for the period from 23 to 28 April 2025
The Cabinet Office has updated Procurement Policy Note 013: Using standard contracts (PPN 013), which provides in-scope organisations with guidance on standardisation of terms and conditions in public contracts. PPN 013 applies to all central government departments, their executive agencies and non-departmental public bodies. Other public sector contracting authorities may wish to apply the guidance. PPN 013 has been updated to expand the appropriate use of the Short Form Contract, allowing in-scope organisations to utilise the Short Form Contract for non-complex above-threshold procurements, within the relevant limits, where it is proportionate and appropriate to do so. In these cases, authorities are advised to consider including additional clauses from the Mid-Tier Contract to cover required terms which are missing from the Short Form Contract. PPN 013 has also been updated to reflect terminology introduced by the Procurement Act 2023 (PA 2023) and the Procurement Regulations 2024. For procurements commenced before the PA 2023 go-live on 24 February 2025, authorities should continue to refer to PPN 08/23.
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