My co-director and I have just finished the last draft of our T&C. Before we put them out there though, we need to make sure that they are actually legal. Any idea how we go about this?
Do we need to definitely get a solicitor? Or can we do without one? Please could you briefly explain the law of England behind T&C?
Many, many thanks in advance for your help.
Alasdair Taylor's Answer
There is no general requirement that UK legal contractual documentation has to be approved by a particular institution or profession to be “legal”. A contract can in theory be formed by a handshake or indeed a wink, and the terms of a contract can be written with a stick in the sand.
That said, there are several distinct senses in which a set of terms and conditions might be considered to be “legal” or not. Consider the following questions.
- Do the terms and conditions facilitate compliance with applicable regulations (e.g. a data processor clause might facilitate compliance with the Data Protection Act 1998 in a situation where personal data is being processed by one company on behalf of another)?
- Are the terms and conditions enforceable (e.g. exclusion clauses under the Unfair Contract Terms Act 1998)?
- Are they themselves unlawful (e.g. under the Consumer Protection from Unfair Trading Regulations 2008)?
- Are they drafted in language that is customary in English contracts, so that the English courts’ interpretation of them will be relatively predictable?
- Are they internally consistent – do they make sense from a legal perspective?
(My examples assume you’re in the UK.)
Each of these questions might be thought to be a question about the legality of document.
The only way to be entirely sure of whether your T&Cs are “legal” is to ask someone who is capable of answering these questions to review the document – usually, your solicitor.
In practice, a good solicitor will normally be able to find issues or at least potential issues with any legal document, even one prepared by another (good) solicitor.