Contract interpretation—battle of the forms—on whose terms have parties contracted?
Contract interpretation—battle of the forms—on whose terms have parties contracted?

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Contract interpretation—battle of the forms—on whose terms have parties contracted?
  • When does a ‘battle of the forms’ scenario arise?
  • Which party’s terms and conditions will prevail?
  • What is the ‘last shot’ doctrine in the battle of the forms?
  • Does the ‘last shot’ always determine the terms and conditions?
  • Counter-offer ‘kills’ the offer
  • Terms and conditions sent after the contract has been concluded
  • Incorporation of the terms and conditions in a battle of the forms scenario
  • Prevail clauses—attempting to usurp the 'last shot' doctrine
  • A battle of the forms may result in there being no binding contract
  • More...

This Practice Note considers the court’s approach when there is dispute as to which party’s terms and conditions govern their contract in a ‘battle of the forms’ scenario most commonly experienced in negotiations between commercial suppliers and buyers of goods who each want to conclude a contract on their own standard terms and conditions.

When does a ‘battle of the forms’ scenario arise?

A ‘battle of the forms’ arises where two parties enter into negotiations with the intention of entering into a contract but each attempts to conclude the contract on their own standard terms and conditions.

In such a case, it will be necessary to determine:

  1. if a binding contract has been entered into between the parties and, if so

  2. which party’s terms and conditions have been incorporated into the contract, if any

The scenario often arises in negotiations between commercial suppliers and buyers of goods who each want to conclude a contract on their own standard terms and conditions.

Which party’s terms and conditions will prevail?

The key issue will be to identify precisely when the contract was concluded. This will involve analysing the exchanges between the parties in terms of offer and acceptance.

In Tekdata Interconnections v Amphenol, Dyson LJ analysed the proper approach as follows:

‘In my judgment, it is not possible to lay down a general rule that will apply in all cases where there is a

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