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 parties.
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 them.
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 battle.
Getting your document signed is the 'goldstandard'. It is the best advice we can give but also we know that we live in the real world.
Is there a difference between a contract and terms of consignment?
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 delivery.
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 were issued.
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 individuals listed.
