As a matter of law, a legally enforceable contract is created
when there is (1) an offer; (2) acceptance of that offer; and (3)
consideration (usually money). It can be contrasted with a bare
promise, which is not legally enforceable.
We tend to think of contracts as documents, but the document is
not the contract; it is evidence of it. In some circumstances, the
existence of a document may prevent a party from arguing that the
terms in the document do not reflect the real agreement of the
In the absence of written evidence of the terms of a contract,
or of instructions given to someone in accordance with the terms of
a contract, it is very hard to resolve a dispute that might arise
about who said what to whom and when.
If someone signs a document (or gives a form of electronic
affirmation) they cannot then argue (in the absence of fraud) that
they didn't understand what they were signing, or that its
terms don't reflect the true agreement of the parties. This is
significant when the document refers to standard terms and
conditions. By signing such a document you will be bound by
standard terms and conditions even if you haven't read
Where documents are created but neither are signed, you have
what is known as a "battle of the forms", and there is no
short answer as to whose terms and conditions will win the
Getting your document signed is the 'goldstandard'. It
is the best advice we can give but also we know that we live in the
Is there a difference between a contract and terms of
Probably. The Heavy Vehicle National Law (HVNL)
refers to contracts, but it also refers to, and places significance
on, terms of consignment.
Terms of consignment are broader and more general than a simple
contract. They most likely extend to instructions given (perhaps
orally) in relation to loading, scheduling, pick-up and
Given the importance placed on both contracts and terms of
consignment under the HVNL, the best way to protect yourself and
avoid liability is to put it in writing. This doesn't
necessarily have to be a signed contract, but at the very least an
agreement or instructions should be confirmed by email or text as
soon as possible after the agreement was reached or instructions
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
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This article looks at HVNL and how to follow the 'big 5' process to achieve CoR compliance within your organisation.
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