What is a contract?
A contract is a binding agreement made between two parties and although it will usually be in writing, it could be made verbally. Always ensure that you obtain and read through the entire document including the standard terms and conditions (often in the small print on the reverse of an order form or referred to elsewhere e.g. on a website) before signing the contract, since this forms part of the contract and is absolutely essential to its meaning. Ensure that the contract is signed by someone with the authority to sign contracts on behalf of the University. Try never to enter into a verbal contract, since such action is fraught with danger; but if you do find yourself in such a situation, keep a full record of all conversations had and also write to the other party confirming your understanding of the agreement reached as soon as possible.
Will purchasers of goods or services from the University automatically be bound by the University’s standard terms and conditions?
No, these must actually be sent to the purchaser at the same time as the order form is dispatched – so do remember to attach them to all faxes letters and contracts before the order has been signed and placed. If purchases return your order with their own standard terms then you should insist that the University’s terms and conditions are to apply.
Dating deeds and agreements
When does a document become legally binding?
After both parties have signed the document and intend that it should become legally binding, then it should be dated to make it a complete and binding document. This is the date upon which it became legally enforceable, however this date may be different to the stated effective date or commencement date, which records when the activity is due to start or actually started.
If a document is signed by both parties, but as one party wanted to wait for something to happen first so it remained undated, is this document still legally binding?
No, it is not a completed document and has not become legally binding. However if both parties process as if it had been dated, then an implied contract will arise based on the terms of the undated document. This is not an ideal situation as the terms may have been varied and the undated document cannot be conclusively relied upon.
What is the effective date?
This is the date upon which the activity is due to start or the date when it actually started. This is not necessarily the same date as the date the contract was dated and became legally binding and enforceable by the parties. The term of the contract will run from the effective date usually for a specific period or until the activity has completed.
Should I back date a document to when the activity began?
No, a contract should be dated on the date where all parties have signed and intended to be delivered. Once dated, becomes legally binding and enforceable through the courts.
Should I forward date an effective date in a document?
No, it should be dated the day it is actually signed and delivered. The effective or commencement date for the activity can still be after this date and is different from the date the enforceable contract came into being.
Should signitures be dated?
It is unnecessary to date signatures under English law. Assitionally it is confusing to rely on the date of last signature as being the date when the contract became legally binding, because signatures are not always dated.Only one date should be included in the document usually at the very beginning or immediately above where the signatories sign
Can the activity in the document commence on a different date from the effective date?
Yes absolutely, the effective or commencement date for the activity can be before or after the actual date of the document. The term, effective date or commencement date are usually in the body of the document or set out in the definitions section.
External Legal Advice
I want to obtain external legal advice. Can I instruct solicitors directly?
Legal Services should be consulted before advice from external solicitors is required and they will liaise with external firms as necessary and in accordance with the University’s Protocol for Dealings with External Legal Advisers.
Legal Services will manage all instructions and communications as this enables accurate, relevant and timely advice to be obtained and costs to be monitored in accordance with the agreed service level statements.
Who will pay for legal advice?
The University will not pay for legal advice that is not obtained via Legal Services and fees will be paid for by the relevant School or Department.
What is legal privilege?
All communications with the Legal Services, where you are seeking legal advice, will be protected by legal privilege. This means that they normally cannot be referred to in court proceedings or otherwise disclosed.
Advice received from Legal Services should not be forwarded to anyone, including
University colleagues, unless otherwise agreed with us, as this may cause legal privilege to be lost and for the advice to become disclosable. For the same reason, email circulation should be limited only to those who need to receive the advice.
Under no circumstances should any email, document or other correspondence from Legal Services be sent outside the University without the clear agreement of the Legal Services lawyer with whom you are dealing.
Communications with people who are not lawyers cannot be legally privileged, even if marked as such.
Signing of documents
Who can sign a document on behalf of the University?
The University governance sets out the position:
- The University’s Scheme of Delegated Powers of Council (which is set out in Appendix B of the University’s Code of Practice on Corporate Governance).
- The University’s Manual of Financial Rules under the section headed Authorised Signatories.
Deeds must always be sealed by the University using its Common Seal (which is held by the Registrar and Secretary). The Seal will be witnessed by two authorised signatories.
However many contracts and other documents are not deeds and can be sign by someone authorised to sign on behalf of the University. Usually this will be someone in the Finance Office holding delegated authority. If expenditure is less than £25k then usually a Head of Budget Centre will be able to authorise the expenditure, but where a contract needs to be signed, Finance Office will still have to sign it.
The Registrar and Secretary should sign all contracts exploiting the University’s intellectual property. The Director of Human Resources should sign employment contracts and the Director of Estates should sign estate contracts, but otherwise contracts for all goods and services will need to be signed by Finance Office rather than Heads of Budget (see 15.3 of the Manual). The Vice Chancellor should sign all contracts relating to collaborative provision (see 21.2 of the Manual); although under the University’s Scheme of Delegated Powers of Council this has also been delegated to Provost and Vice Principal.
If the document is a memorandum of understanding or it involves an international element, then the University’s Provost and Vice Principal should sign it, having first checked it is acceptable with Legal Services.
Status of the University
What is the status of the University?
The University of Birmingham was incorporated as a corporate body by a Royal Charter granted by her late Majesty Queen Victoria on 24th March 1900 and as subsequently revised, having a perpetual succession with the full power and capacity in its own name to sue and be sued and to hold property.
The University operates as an educational charity and has the statutory status of an exempt charity (i.e. exempted from registration as a charity) by virtue of the Charities Act 2011, Schedule 3 and the University of Birmingham Act 1900. It is registered with the Registrar of Companies with the number RC 000645 as a Company Incorporated by Royal Charter but does not have a registered office address nor an obligation to file accounts or other documents at Companies House.
It has a VAT number GB729856187 and has the Inland Revenue charities reference number X7237
Third Party Claims
I have received a claim form/letter before action or a third party has said it has a claim against the University. What do I do?
All claims received by the University must be sent to the Legal Services Department immediately. Liability can be conceded orally or in writing, or in some cases by your conduct on receipt of a claim and therefore once the claim or threat of a claim has been received you should not have any contact with the person or organisation bringing or threatening action without first speaking to Legal Services.
When should I contact Legal Services
How soon should I contact Legal Services?
Please contact Legal Services at the earliest opportunity, whatever your question concerns, to allow sufficient time for the matter to be properly considered and any legal issues managed.