Q&As

How do you determine which terms and conditions have been agreed between a supplier and a purchaser in a battle of the forms situation?

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Published on LexisPSL on 04/10/2016

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • How do you determine which terms and conditions have been agreed between a supplier and a purchaser in a battle of the forms situation?
  • Contract formation
  • Incorporation of standard T&Cs
  • Battle of the forms

Contract formation

Under English contract law, a contract is formed when:

  1. a valid offer is accepted

  2. there is valid consideration

  3. the parties intend to create legal relations

A purchase order for goods or service may be sufficient to comprise a legally binding contract if the terms and conditions (T&Cs) attached to it make the purchase order capable of acceptance.

Incorporation of standard T&Cs

To establish that express T&Cs have been incorporated into a contract, the party seeking to rely on them must show that it has done what is reasonably sufficient to give the other party notice of them (Thornton v Shoe Lane Parking Ltd). This will be a question of fact in each case. The more onerous or unusual the terms, the more that needs to be done to bring them to the notice of the other party.

If the court finds that the T&Cs were not incorporated into the agreement, they cannot be relied upon (Interfoto Picture Library v Stiletto Visual Programmes). It is important to ensure that:

  1. the T&Cs are given to the other party at the time the contract is formed

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