Contact Our Manufacturing Solicitors
If you have any more questions or would like more information regarding battle of the forms, you can contact our Manufacturing Solicitors below.
The expression the “Battle of the Forms” refers to the situation frequently encountered, where businesses seek to contract with each other on the basis of their own and often competing standard terms and conditions.
Whilst, even for the most imaginative, the expression is unlikely ever to conjure images of Vecna or Mordor-like sieges, its significance should not be downplayed, even if the stakes (and the fate of humanity) may not be as high.
In many cases, there may only be one set of terms and conditions in operation. If so, questions regarding their application and understanding the parties’ rights obligations under the contract may be easily resolved. But what if both sides have fired off their own standard terms and conditions in communications? What then, whose standard terms will apply (if at all)?
The outcome to that question may have wide-ranging consequences for you and your business and the rights and remedies available to you under the contract. For instance, under your standard terms, you might be entitled to suspend performance under the contract, exercise a lien over goods until your invoices are paid in full, or reasonably limit your liability for any breaches of the contract by you. Conversely, the other side’s terms and conditions might contain punitive provisions regarding performance, which you would otherwise not wish to agree.
When approaching the question, the courts will usually determine whether the parties have reached an agreement on all material points and if that can be evidenced in writing and/or by conduct. Where the position can become blurred is where (in the course of battle or business) the parties fire across purchase orders, order acknowledgements, invoices and other pre-contract documentation, each of which contains the terms and conditions of the party firing the shot which is intended to represent “the last shot” in negotiations.
Unfortunately, there is no simple answer to the question, and cases are typically fact specific. There are, however, certain steps you can look to take which might improve your prospects of success long before a sword is drawn or a telekinetic blow is struck.
And if you don’t do those things, do not despair. All may not be lost, but it may make running up that hill significantly more difficult.
If you have any more questions or would like more information regarding battle of the forms, you can contact our Manufacturing Solicitors below.