Carlton Communications Plc and Granada Media Plc v The Football League 
Facts of the Case
In June 2020, ITV digital and the defendant entered into a written agreement where the defendant agreed to license ITV Digital the rights to broadcast its football matches for three seasons.
Based on the contract, ITV digital must make a payment to the defendant of 135 millions gbp.
However in March 2002, ITV digital when into administration before paying further sums due under the contract.
The defendant, argued that the financial liabilities faced by ITV digital were guaranteed by the claimants. The claimants were the sole shareholders of ITV digital. It is based on the initial bid document for the broadcasting rights, the claimants had declared that ITV digitals and its shareholders will guarantee all funding to the football league.
The bid document however was marked with ‘subject to contract’ and the contract in June 2000 made no mention of the guarantee by the claimants.
The claimants were held not liable. Langley J stated that the initial bid document did not contain a unilateral offer from the claimants to guarantee ITV digital’s responsibility due under the June 2000 contract. It was based on the fact that the document was expressed to be subject to contract.
ITV digital had no authority to act on the claimants’ behalf.
The purported guarantee was also not effective as it was contrary to s4 of the Statute of Frauds 1677 where the guarantee must be in writing and signed by the party charged.
A guarantee contained in a bid document which was marked subject to contract was not binding.
Trentham Ltd v Archital Luxfer Ltd 
Facts of the case
The claimant were the main contractors in the building of some industrial units.
The defendants, subcontractors carried out some works on the windows.
The claimants and defendants entered into an agreement. The terms of the agreement were negotiated in a complex process and commenced on the 12th of January 1984. The contract was concluded in the 2nd of February 1984.
However there were certain things which still under negotiation such as the incorporation of the claimants’ standard of terms or defendants’ standard of terms. The negotiations were still continued until April 1984 and no agreed document was ever drafted.
Claimant had started to work in February and payments from defendant began in early March.
When there was a dispute , claimant argued that there was no contract.
Steyn LJ stated that there was a contract. The reasoning was based on the case of Brogden v Metropolitan Railway where a contract can be concluded by conduct.
The contemporary exchanges and carrying out of what was agreed in those exchanges support the view that there was a course of dealing which on the claimants’ side created a right to performance of the work by the defendants and on defendants’ side created a right to be paid on an agreed basics.
The coincidence of offer and acceptance will in the vast majority of cases represent the mechanism of contract formation.
Based on this case, the exchange correspondence alleged to have led to contract formation.
However, it is not necessarily so in the case of contract, alleged to have come into existence due to performance. The judge analysed the matter in terms of offer and acceptance. The view of Steyn LJ was differed where in this case, he did not express a firm view as to whether this contract could be analysed into offer and acceptance. He considered therefore the whole correspondence approach to contract formation.
It is also does not matter whether the contract came into existence after part of the work had been carried out and paid for. The conclusion is based on the fact that when the contract came into existence it impliedly governed pre contractual performance.
Contract can be concluded by conduct.
Case Summary – Confetti Records v Warner Music UK ltd 
The claimant is an independent record company and the defendant wanted to use the track on a complication album produced by the record company with a payment in advanced.
The claimant wanted to sue the defendant for the infringement of copyright in a music track.
The defendant faxed the claimant with revised terms of the deal that were marked subject to contract.
The claimant faxed back the defendant with a signed copy of the deal memo followed by an invoice for the advanced payment and label copy as well as the compact disc of the original mix of the track.
However, later, the claimant wanted the defendant to withdraw the track from the album. The track incorporated in the album had been produced with considerable expense.
Defendant in a defence stated that there was no infringement of copyright as there was a binding contract between the parties based on the basis that the deal memo amounted to a binding contract where the defendant had been licensed to reproduce the track or on the basis that the claimant sending of the track and the invoice constituted an offer which the defendant had accepted by using the track.
The judge held that the inclusion of the track on the album was not an actionable infringement of copyright.
The claimant sending of the track and the invoice was an offer capable of acceptance by the defendant even though the use of the phrase ‘subject to contract’ on the deal memo should not be binding.
Once the defendant had accepted the offer by conduct, the defendant cannot withdraw the offer as a contract has come into existence.
Contract can be concluded by conduct
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