A Collection is a selection of features, articles, comments and opinions on any given theme or topic. It allows you to stay up‑to‑date with what interests you most.
Login here to access your saved articles and followed authors.
We have sent you an email so you can reset your password.
Sorry, we had a problem.
Tags related to this article
Download PDF Print page
Published 25 noviembre 2019
The use of the phrases “subject to contract” and “without prejudice” are often used in negotiations. However, there is an important difference between the presumptions these two statements create.
The intention to create legal relations is an important ingredient to any agreement. The expressions “subject to contract” or “subject to lease” or “subject to agreement” can be used to rebut this presumption during negotiations so it makes clear that the writer does not intend to be legally bound by an offer until a formal agreement is in place.
Correspondence made in a genuine attempt to settle a dispute and stated to be “without prejudice” cannot be admitted as evidence in litigious proceedings. This means any offers made in a genuine attempt to settle must be kept confidential and cannot be used in evidence against either party should the settlement discussions fail. Simply heading a document “without prejudice” will not protect a document from being treated as open correspondence, unless it is at its heart a genuine effort to resolve a dispute.
It is key to note that a binding agreement is made on the acceptance of a without prejudice offer, so if you want to agree a settlement in principle but leave the detail to be further documented, or if it involves the creation of a legal estate that requires specific statutory steps to be followed, then the offer needs to clearly set those out as conditions of acceptance and to be also marked “subject to contract or lease or agreement”.
London - Walbrook
+44(0)20 7894 6028
By Gemma Leonard
By Andrew Morgan, Omotorera Sotinwa
By Sadie Guile
By Clare Hartley, Chloe Postlethwaite
By Emma Gonzalez, Ben Thornycroft
By Anna Hart
By John Dunlop, Omar Asfar
By Andrew Allan-Jones, Sarah Hopton
By Sally Morris-Smith
By Rachael Reynolds
By Anne Harrison, Nadine Kamalaneson
By Clare Hartley, Kai Ricciardiello, Louise Day
By Jonathan Brogden, Millie Bailey
By Karen Howe, Antonio Marino
By David Manifould, Andrew Boulton, Clive Garston, John Dunlop, Michelle Jones, Paul McCartney
By Kai Ricciardiello, Clare Hartley
By Christopher Stanwell
By Christopher Stanwell, Andrew Morgan