T&Cs & Contract Drafting

In so far as contract drafting is involved, the terms of conditions are of utmost importance and constitute the basis of any contract.

The terms and conditions in themselves identify the rights and obligations of the parties to the particular contract. It is important to know that some terms and conditions are standard to all contracts whilst others are specific to the particular contract being entered into such as the price and payment terms, any time-frames applicable or even potentially any penalties in case of non-fulfilment of obligations stipulated in the contract.

Under Maltese Law contracts are regulated by the Civil Code. Contracts are defined as legally binding instruments entered into between two or more persons and which create an obligation between the parties to the particular contract, which obligation is regulated and dissolved. Therefore, it follows that whenever someone is about to enter a contract the first question to be asked is precisely what the terms and conditions of that contract are going to be.

Consenting to a website’s T&Cs will, in most cases, constitute entrance into a legally binding relationship between the owner of a website and the user consenting thereto.

With the introduction of various laws at EU level on consumer protection, the provision of online goods and services to consumers within the European Union has become subject to many important rules in so far as T&Cs are concerned. Whether you sell to customers on a ‘distance‘ basis, on-premises, or off-premises, it is important to ensure that the T&Cs regulating your relationship with the people purchasing or using your online services is clear to both sides.

Obtaining an end user’s consent is of vital importance; otherwise it could prove to be significantly difficult to enforce rights in the event of default by the other party without first showing that the contract was validly entered into and consented to by the other party.

Our Firm can assist with the drafting an/or reviewing of website T&Cs to ensure that whilst these are compliant with consumer law and do not include any ‘unfair contract terms’ (which would render your contract with the client null), your business will be sufficiently protected against any defaulting client.

Our Firm can provide a legal understanding of the contract at hand since it is extremely important to seek appropriate legal advice with respect to the legal implications of the particular contract in order to get a better understanding of what one is binding himself to. This is also applicable before proceeding further on a website since adhering to terms and conditions on a website is tantamount to entering a contract which is however virtual but still binding.

Whether you are a Contractor or Sub-Contractor, our Firm can assist you in various ways. We are there to ensure that you protect yourself from liability and preserve your rights. Our experienced team will assist you by firstly, negotiating the terms and conditions of a Sub-Contracting Agreement such that it is legally watertight, precise and coherent.

In any Sub-Contracting Agreement, the scope of work, duration, consideration, payment method and termination clauses are among the most important requisites to be included, in addition to other considerations such as ensuring that all terms and conditions are clear and that the Agreement is inclusive of non-disclosure clauses to ensure that confidential information of a sensitive nature is protected against disclosure.

Other clauses parties may wish to add to a Sub-Contracting Agreement include non-compete clauses, imposition of a professional indemnity insurance requirement, and a clause prohibiting assignment of the works entrusted. Indemnity clauses are very useful too, as they protect parties against damages caused by third-parties.

Gonzi & Associates, Advocates, can assist with the following:

1. Advising on the implications and consequences which could result from sub-contracting contract to be entered into as well as advising on the terms and conditions and requisites which are imposed by law.
2. Advising on the rights and obligations imposed on both the contractor and sub-contractor.
3. Advising on the process to enforce the terms of a sub-contracting contract whether you are a Contractor or Sub-contractor.
4. Initiating legal procedures to enforce the clauses of a Sub-contracting contracts.
5. Assisting and advising in disputes and Court Litigation in front of the Courts of Malta.

The supply of goods or services in the downstream markets are vital for the success of any producer or service provider. Supplier agreements are therefore inevitable to ensure your business is well supplied to continue providing goods or services. Whilst many supplier agreements are simplified to a ‘fill-in-the-blank’ format, it is important to keep in mind that these type of agreements are usually accompanied by detailed terms & conditions regulating your relationship with the supplier.

Therefore, any supplier agreement should be carefully reviewed. Our Firm can assist with reviewing and negotiating a supplier agreement’s terms and conditions such that it is legally watertight, precise and coherent. Whether our Firm is engaged to draft a supplier agreement from scratch or simply to review an existing agreement, our team of lawyers ensures that every supplier agreement is inclusive of all important clauses, such as:

• Products to be supplied;
• Timeframe within which the products need to be supplied;
• Price for supply of products and method of payment;
• Clear terms and conditions;
• Confidentiality clause;
• Non-compete clause;
• Insurance cover on products supplied;
• Termination of contract; and
• Jurisdiction clause.

In addition to the above, Gonzi & Associates, Advocates can assist with the following:

1. Advising on the implications and consequences which could result from a Contract of Supply to be entered into as well as advising on the terms and conditions and requisites which are imposed by law.
2. Advising on the rights and obligations falling on both the seller and supplier.
3. Advising on the process to enforce the terms of a Contract of Supply whether you are a seller and supplier.
4. Initiating the legal procedures required to enforce the clauses of a Contract of Supply.
5. Assisting and advising in disputes and Court Litigation in front of the Courts of Malta.

A commercial lease is a lease agreement on a property which is not to be used as a residence, but which is used for commercial purposes to generate a profit. Within this category one would find shops, clinics, and any other property form which one would practice his art or profession.

As with private residential leases a commercial lease agreement must be in writing and must stipulate the following: the property to be leased, the use agreed between the parties of the property, the duration for which the property will be let, whether the lease may be extended and how, the amount of rent to be paid and the way the payments shall be done.

An employment contract is a contract which regulates the employment relationship between an employer and his employee. Like any other contract, an employment contract lays down the terms and conditions of the employment relationship between the parties. Private sector employment contracts are regulated by the Employment and Industrial Relations Act and ancillary subsidiary legislation.

Like other contracts, certain conditions laid down in employment contracts are laid down in the law itself or though regulations whilst others are included by mutual agreement between the parties.

Our Firm can assist in drafting contract terms for both definite and indefinite employment contracts. We also advise on any potential implications of employment contracts, the rights of both parties and any clauses relating to non-competition and non-solicitation.

In order to have a valid contract there must be the offer of one person on the one hand and the acceptance of the other party on the other such that the person receiving the offer must accept it. Therefore, when drafting a contract, it is important that all the required elements concur otherwise you could end up with a contract which is invalid and not legally binding. We can assist and give clients legal advice to ensure that what one is binding himself to is in the required legal form. We can also explain and advise on the terms and legal implications of the contract to be signed by the parties.

The following requisites must concur in order to have a valid contract:

1. Parties must be legally capable of entering a contract and being bound by it. When it comes to the capacity of the parties to a contract Maltese law is very specific and clear. The parties must be intellectually capable of contracting such that minors, interdicted and incapacitated persons and those who are forbidden by law cannot be parties to a contract. In this regard it is crucial to ensure that none of these prohibitions are present as otherwise the contract will be null and void.
2. The consent of the parties binding themselves. There must be a mutual agreement and understanding between the parties to a contract. A contract signed as a result of fear, fraud or violence is not valid at law. Therefore, it is important to ensure that the contract one is signing has been entered into freely and with a clear understanding of the terms and conditions of that contract.
3. The object of the contract. The object can be tangible or intangible but must be something which can be transferred or promised to the other party to the contract.
4. A lawful consideration. This could be the price to be paid or a simple promise to do something which is stipulated in the contract. The consideration of a contract cannot be something illegal, impossible or against public policy.