The Battle of the Forms
When you have a Battle of the Forms, which form wins? .......
For a contract to be formed there must be agreement. However, before agreement is reached there may often be an exchange of correspondence containing offers and counter-offers. Sometimes agreement is reached by conduct (for example by starting work on site), and it is then necessary to determine what was the counter-offer that had been accepted by that conduct. This process is often referred to as the Battle of the Forms.
The standard position is that the last counter-offer that was in existence before acceptance by conduct took place was the offer that was accepted by the conduct. This standard position was reinforced again in the recent 2011 Court of Appeal case of Tekdata Interconnections Ltd v Aphenol Ltd where it was concluded that the standard position as outlined above would apply unless the parties’ previous conduct clearly showed that their common intention was that some other terms should prevail.
So that all seems very simple then - but as we all know it is often extremely difficult to determine which is the last counter-offer that was actually in place.
In fact this is a matter that has taxed many of the great legal minds through the years – and those great legal minds (unfortunately) often reach totally different conclusions. So it is obviously preferable not to put yourself into a position where the matter needs to be referred to a third party to decide upon in the first place.
Therefore if you face, or potentially face a Battle of the Forms situation, you need to ensure that your position is protected, and if you need any advice regarding this matter or any related issue, you should immediately contact our office.
For a contract to be formed there must be agreement. However, before agreement is reached there may often be an exchange of correspondence containing offers and counter-offers. Sometimes agreement is reached by conduct (for example by starting work on site), and it is then necessary to determine what was the counter-offer that had been accepted by that conduct. This process is often referred to as the Battle of the Forms.
The standard position is that the last counter-offer that was in existence before acceptance by conduct took place was the offer that was accepted by the conduct. This standard position was reinforced again in the recent 2011 Court of Appeal case of Tekdata Interconnections Ltd v Aphenol Ltd where it was concluded that the standard position as outlined above would apply unless the parties’ previous conduct clearly showed that their common intention was that some other terms should prevail.
So that all seems very simple then - but as we all know it is often extremely difficult to determine which is the last counter-offer that was actually in place.
In fact this is a matter that has taxed many of the great legal minds through the years – and those great legal minds (unfortunately) often reach totally different conclusions. So it is obviously preferable not to put yourself into a position where the matter needs to be referred to a third party to decide upon in the first place.
Therefore if you face, or potentially face a Battle of the Forms situation, you need to ensure that your position is protected, and if you need any advice regarding this matter or any related issue, you should immediately contact our office.
posted by Melbury at
14:05
<< Home