If a contract for the exchange of forms by the parties is not concluded (as is the case if the target recipient submits a counter-offer in accordance with § 2-207 (1)) and the parties nevertheless provide – the seller sends and the buyer accepts the goods – then the parties have a contract of conduct in accordance with § 2-207 (3). In a form battle scenario involving the sale of common law property, where the parties exchanged forms that did not exactly match, no contract was entered into. However, if the parties agreed on the thick terms, they usually continued to complete the transaction anyway, often unaware that the exchange of forms did not create a contract. When the goods were shipped and accepted, the parties had a contract – after all, the goods were not sent as a gift. At Tywood, a battle of forms took place, and then an order calling for arbitration in the event of a dispute took place. The order was never signed by the applicant. Grange J. ruled that the reference to arbitration had never been part of the contract between the two parties. The court noted that the defendant did not draw the plaintiff`s attention to the arbitration clause or file a complaint if the plaintiff had not signed the order.
Judge Kerr exceptionally noted that the “first shot” had won. It did so because, in that case, the buyer had accepted the seller`s general terms and conditions from the outset, which precluded the application of the contrary conditions proposed by the buyer. The court explained that after the buyer had accepted the seller`s terms and conditions in 2011, its only recourse if it did not want to be bound by the seller`s terms and conditions was either not to buy from the seller or to convince the seller to agree in writing to waive its terms and conditions. However, the buyer had done neither. The court concluded that, while unusual, the “last shot” doctrine was shifted to the facts in this case. The conditions of the exchanged forms that correspond are, of course, the thickened conditions (for example, the item, the quantity, the price and the delivery time). Incompatible terms are deleted. These generally include the exclusion of implied warranties, limitations and substitutions of standard remedies provided by law, choice of law, choice of venue, and mandatory arbitration clauses. Another seemingly obvious way to avoid the battle of the forms would be to clearly identify the terms of the agreement (rather than having them in the fine print on the back of the form). In this way, the conditions are clear to the parties so that they can negotiate the terms and actually reach an agreement, which reduces the likelihood of a dispute arising. And this is perhaps the most remarkable thing about the battle of forms; In the case of contracts concluded by the exchange of standardized and pre-printed forms, the contract cannot consist of standard passes from both parties.
The fact is that an astonishing percentage of carefully designed terms and conditions will have no contractual meaning – but this doesn`t seem to be a problem for many businessmen or their lawyers. If the parties have exchanged forms that contain non-compliant standard conditions and a legally binding contract is formed in accordance with § 2-207 (1), what are the terms of the contract? The answer can be found in §?2-207(2) (this paragraph only applies if a contract is entered into under 2-207(1)).12 This paragraph provides the following: A sea of ink has been spilled to describe this mess, but a short article describing the battle of forms in one word could help unravel the intimidating folds of § 2-207 for the practitioner, who does not have time to read a treatise on it. “. Where there is a battle for forms, there is a contract as soon as the last of the forms is sent and received, without objecting. In some cases, the battle is won by the person who fires the last shot. He is the person who proposes the last conditions; and if the other party does not object, it can be assumed that it agrees with them. In cases where various contracts, usually formal, are exchanged after the offer and acceptance, in the event of a dispute over the terms of the contract, the court is left to settle a dispute of forms. 1. Reaction Molding Techs v. General Elec. Co., 585 F.
Supp. 1097, 1104 (E. D. Pa. 1984). 2. D. Keating, Exploring the Battle of the Forms in Action, 98 Mich.
L. Rev. 2678, 2679 (2000). 3. Prof. Grant Gilmore, quoted in J. Murray, The Chaos of the “Battle of the Forms”: Solutions, 39 Vand. L. Rev. 1307, 1309 (1986).
4. See W. David Slawson, Binding Promises, p. 198, n. 44 (1996). 5. United States v. Marietta Mfg.
Co., 339 F. Supp. 18 (S.D. W. Va. 1972). 6. The concept of thicker terms is essential for understanding the struggle of forms. Llewelyn wrote: Immediately, there is a significant problem with the words of § 2-207 (2). Note that § 2-207 (1) recognizes that exchanged forms can create a contract regardless of “other” or “additional” conditions. But the wording of § 2-207(2) only bothers to tell the reader how to deal with the terms “additional” – the terms “different” are not mentioned in this subsection, and the text of the law does not instruct the reader how to deal with them. The struggle of forms often causes great headaches.
Entering the battle of forms does not necessarily destroy an agreement or agreement, but these fights are a waste of time and money. A struggle can also have negative results, as the UCC can provide standard conditions to fill gaps that can be rejected by both parties or by one of them. These default conditions that fill in the gaps are mainly favorable to the buyer and will only be delivered if the court finds that the parties intended to enter into an agreement and that the parties have not agreed on all the material conditions.