The Standard Conditions of sale are now in their third edition and, in all their essentials, have been with us for five years.

Yet, according to overwhelming anecdotal evidence, they are in use in commercial transactions in only a minority of cases.

The resistance to their adoption seems to indicate a deeply rooted adherence by solicitors to established routines of the past, in spite of long standing obsolescence.

The incorporation of the national conditions of sale (20th edition) in contracts for the sale of land involves ever lengthier variations, sometimes occupying more than two pages of the general conditions which are not directed to the current property market.

The benefits of a modern code are ignored; the addiction flourishes; the habit needs to be kicked.

The noticeable enthusiasm in the profession for new gadgetry is not matched, it seems, by the less macho exercise of bringing le gal forms up to date.The use of the standard conditions is, of course, infinitely preferable and more appropriate.

They are designed to meet current conveyancing practice and the impact of modern technology and techniques not remotely in contemplation when the national conditions were drafted.

The national conditions were based on a system of unregistered title, for investigation after the exchange of contracts.

They are no longer being updated or produced, and situations now regularly occur for which there is no provision in the national conditions.

In contrast, the standard conditions are well drafted in plain modern English, and deal comprehensively with arrangements that are now standard practice.

Their immediate adoption is strongly recommended.The standard conditions were originally prepared with residential conveyancing practice predominantly in mind.

Their use in commercial transactions does involve an element of conversion where the policy of the conditions does not always conform with established practice and expectation in business situations.

We believe that the general integrity of the standard conditions should be left intact, and those amendments which are made should be to achieve clear commercial objectives where the conditions do not conform.

In the context of commercial transactions, we have identified certain standard conditions which, in our opinion, warrant modification on policy grounds.Condition 5.1 stipulates that the seller is to retain the risk of damage or destruction of the property until completion.

In commercial transactions, it is invariable that the risk is expected to pass to the buyer as from the exchange of contracts (except in cases where the seller is required to complete works of construction or conversion).

That arrangement provides certainty and simplicity; the buyer knows exactly the risk he or she is undertaking and can insure accordingly.

If the risk is deferred until completion, it becomes essential to define the state of the property in which the buyer is required to accept it.

The seller would underwrite the risk of damage or destruction to the property before completion by insurance, but that does not provide a complete answer.

The reversal of the normal incidence of commercial risk involves complicated drafting to cater for what is to happen at completion.

Is the seller or the buyer to be allowed to rescind? Is the buyer to be required to buy the property in its damaged state with the benefit of the insurance proceeds? Is the seller to be obliged to reinstate the property before completion of the sale? Who is to bear the commercial loss of the property not being in the agreed state and condition on completion? If the risk passes to the buyer on the exchange of contracts, the buyer accepts all the risk of a property owner, a position which is well understood and to which the market is geared.

Although this may involve an element of double insurance in commercial transactions, the parties are generally sufficiently sophisticated to understand the consequences and have the wherewithal to make appropriate insurance arrangements.

In commercial transactions therefore, the effect of the condition should be reversed.

Condition 6.7 allows the buyer to make payment in legal tender and by banker's draft, in addition to direct credit to a bank account nominated by the seller's solicitor.

In commercial transactions the paramount consideration is same day credit during banking hours.

Payment by legal tender is impractical, and it is no longer possible to obtain same day clearance of a ban ker's draft.

The condition requires variation accordingly.Condition 3.1.2 should be amplified to cover overriding interests, or those matters which would be overriding interests if the title were registered.

Where there is a delay on the part of the buyer, condition 7.3.2 should be amended to allow the seller to become entitled not only to interest but also to income from the property during the period of delay.

Commercial practice has adopted that approach for some time now in order to place heavier sanction on delaying tactics; it is neither practical nor convenient as an alternative for a seller to rely on the right to damages.

Consequential adjustments to conditions 6.3.2 and 7.3.4 are also required.Condition 3.3.2(b) may be too inflexibly drawn.

The seller is bound to act in relation to the grant of leases and applications for consent by tenants to be made in the interval before completion as the buyer reasonably directs against the buyer's indemnity.

In commercial transactions, various scenarios can be contemplated, and it will not always be appropriate to adopt the condition as it stands.

It is usually the case that it is for the seller to manage the property pending completion and, in relation to material issues falling outside the ambit of day to day management of the property, it should seek the approval of the buyer which should not be unreasonably withheld; resort to third party determination may be appropriate in some circumstances.

The simple solution in this condition may not protect the interests of the seller adequately, but then goes to the other extreme in requiring an unqualified indemnity from the buyer.

There should be some balance between the commercial requirements of seller and buyer, and the condition will often be too rigid to provide it.The variations to the standard conditions so far recommended are primarily ones of commercial policy.

There are some other areas not considered to be wholly satisfactory, and where the draftsmen of the conditions might consider some modification in future editions.Under condition 6.5.1, the seller should be authorised to retain the documents of title, not only until the buyer has tendered the amount payable on completion under condition 6.4, but also if the buyer is in material breach of the contract and the seller lawfully refuses to complete on that ground.Under condition 5.2.2, a buyer let into occupation pending completion should not change the use of the property nor infringe any statutory provisions affecting the property.Although it is possible to detect the intellectual difference between the two definitions of these terms provided in the conditions, 'agreement' being a contractual document, and 'contract' the bargain between the parties, it is difficult to discern the need for the distinction, and for the most part it serves to baffle the reader wishing to unravel the practical effects of the use of the expressions.

Surely they could be amalgamated and one of the expressions dropped?The third edition of the standard conditions has been produced specifically to take account of the new regime of implied covenants for title introduced by the Law of Property (Miscellaneous Provisions) Act 1994.

It is only to be expected that the conditions would not counteract the policy of the Act, and that no modifications have been incorporated.

The new conditions seek only to co-ordinate with the administrative provisions of the Act.

There is some doubt, however, about the efficacy of the treatment given to s.6(1) of the Act in condition 4.5.3.

The subsection frees the person making a disposition of the property from liability under covenants for title in respect of any matter to which the disposition is expressly made subject.

The condition employs the technique of providing that the transfer is to have effect as if the disposition is expressly made subject to all matters to which the property is sold under the terms of the contract.

Unless the disposition itself refers to the matters subject to which the property has been sold, the protection of that subsection would not appear to be available.

Perhaps rectification of the transfer would be obtainable if it were necessary, or reliance could be placed on the doctrine of estoppel or other relieving provisions of the Act.It is surely preferable, however, to refer in the transfer expressly to all the matters subject to which the property is sold in the contract.

Accordingly, it is recommended that the condition be modified to require that the transfer should either specifically list all matters to which the sale is made subject, or to refer generally to the matters in the contract for the sale of the property.

If there is a general reference to matters in the contract, it would be necessary to retain the contract with the deeds of the property as a document of record.It is a matter of personal choice as to how the standard conditions are modified in terms of presentation.

The general conditions will be overridden to the extent that the special conditions are drafted inconsistently with them; many will therefore prefer to draft the special conditions of the contract relying only on their general overriding operation.

For those who balk at the need to pore over the small print of the general conditions, that technique will be more appealing than the alternative of making detailed amendments to the general conditions.

The potential danger of dealing with the modifications by 'inconsistent' special conditions is that the general conditions will only be displaced to the extent of the inconsistency, and lack of scrutiny of the detailed provisions of the general conditions can lead to unexpected results.

For this reason, it is recommended that amendments to the general conditions should for the most part be expressly addressed in a clause of the contract dedicated to that function.It is to be hoped that practitioners making detailed amendments to the general conditions will not as a rule adopt the 'jigsaw' technique of interpolation of phrases and words which are not set out in context.

Immediate comprehension is a worthwhile aim, and if a general condition is to be amended, it should, in all but the simplest of cases, be set out in its full amended form.It would be difficult not to acknowledge that the draftsmen of the conditions have provided the profession with a workable and comprehensive code, and their efforts are to be applauded and employed.

Those who seek to tamper with or to provide alternatives to them should perhaps reflect on whether the result of their efforts would be a reduction in quality and effectiveness.