‘Subject to contract’: it’s not what you say, it’s what you do…

Over the last year or so, the courts have considered what effect the phrase ‘subject to contract’ has on contract negotiations.  In particular they have looked at whether using it prevents a contract from being formed.  The answer is that, mostly, no, it doesn’t.  The courts are much more likely to base their decisions on what the parties have actually done (or started doing).  The presence or absence of the phrase ‘subject to contract’ is often only of minor relevance.

A more detailed discussion of some of the recent cases, and a look at the lessons to be learned, is available here.

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