I had a random bus talk with someone who found out I was a law graduate and I just had a question I thought I'd pass to the forum.
If you are negotiating a contract for services and you send the other party a request for amendment (i.e. let's say removing the scope of services for tasks outside your area of expertise), then will Australian courts imply that you accept all the other terms by default and hold you to them?
A scenario would be if you send the amendment request, but the client asks you to carry out services in the meantime within your preferred scope because the work is time sensitive and you comply. They never respond to the amendment after multiple requests and neither party signs the agreement. They still pay you for the work.
You finish the work and then years down the road, something wrong happens and lawsuits start popping up. The other party claims you agreed to indemnify them because you never brought up indemnity clauses as an issue in your amendment request.
I would be inclined to agree with that train of thought. However, it occurs to me that one cannot make a proper analysis of risk without first confirming the scope. I do not think it is in the reasonable contemplation of a party to readily accept additional liability if they have not unequivocally confirmed the extent of their works to begin with.
Would I be I wrong in this rebuttal argument?
If you are negotiating a contract for services and you send the other party a request for amendment (i.e. let's say removing the scope of services for tasks outside your area of expertise), then will Australian courts imply that you accept all the other terms by default and hold you to them?
A scenario would be if you send the amendment request, but the client asks you to carry out services in the meantime within your preferred scope because the work is time sensitive and you comply. They never respond to the amendment after multiple requests and neither party signs the agreement. They still pay you for the work.
You finish the work and then years down the road, something wrong happens and lawsuits start popping up. The other party claims you agreed to indemnify them because you never brought up indemnity clauses as an issue in your amendment request.
I would be inclined to agree with that train of thought. However, it occurs to me that one cannot make a proper analysis of risk without first confirming the scope. I do not think it is in the reasonable contemplation of a party to readily accept additional liability if they have not unequivocally confirmed the extent of their works to begin with.
Would I be I wrong in this rebuttal argument?