English Commercial Law – Battle of the forms
It might not be obvious which standard terms apply when both parties try to impose their own conditions on the other. There may be a war of the forms, for instance, if the seller sends the buyer an invitation to treat that includes the seller's usual terms and conditions and the buyer subsequently submits an offer with his own terms. The seller has made a counteroffer if they refuse to accept the buyer's terms and insist on reintroducing their own. Another scenario is where the seller makes the initial offer and the buyer ostensibly "accepts" it by adding extra conditions, so issuing a counter-offer. There is always a chance that the erroneous set of terms could be accidentally accepted if the contract is handled by the seller's sales representatives or inexperienced administrative personnel, who might not be aware of the requirements relating to offer and acceptance. The conduct of the parties, such as the seller delivering the products or the buyer accepting delivery, may constitute an acceptance of the offer. In Butler Machine Tool Co Ltd v. Ex-Cell-O Corporation (England) Ltd [1979] 1 WLR 401, CA, it was decided that accepting the terms of the buyer meant returning a signed acknowledgement slip. There may be multiple sets of terms and conditions presented during lengthy talks. In the event of a disagreement, the court will apply the "last shot wins" theory and take into account whose terms and conditions were on the table at the time of acceptance. The Court of Appeal confirmed in Tekdata Interconnections Ltd v. Amphenol Ltd [2009] EWCA Civ 1209 that the standard offer and acceptance analysis should be used by courts to resolve a battle of forms dispute rather than the relationship and behavior of the parties.
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