How To Win Battle Of The Forms

25th January 2013
How To Win Battle Of The Forms image

How to Win a “Battle of the Forms”

A “battle of the forms” arises when two businesses are negotiating the terms of a contract and each party wants to contract upon the basis of its own terms.

A typical scenario is the buyer sends the seller a purchase order with the buyer’s terms and conditions on the back, and then the seller sends back an invoice with its own terms and conditions on the back (and of course there is much conflict between the two respective sets of terms and conditions!).  The terms of the contract are then not mentioned again, and the goods and or services delivered.  So whose terms and conditions apply in the event of a dispute between the parties relating to the contract?

The answer is hard to predict, because each case may turn up on its particular facts and there are no “hard and fast” rules which the Court will follow.

A good starting point is who fired the “last shot”, that is the last party to put forward terms and conditions that were not expressly rejected by the recipient.  However this is not always the case as the last set of terms and conditions may have been sent and received after the contract had been formed (e.g. after the goods are delivered and accepted by the buyer).

Sometimes the Court will consider the parties previous dealings for evidence that one party has accepted the other’s terms and conditions.

Therefore to try and avoid the uncertainty of a “battle of forms” a business can take certain steps to protect its position.

Make sure you send to the other party a copy of your terms and conditions as early as possible in the transaction, and include the terms and conditions with your offer or acceptance.  For example the seller should send the terms and conditions with the initial acceptance of the buyer’s purchase order, rather than including it on an invoice delivered after shipping the goods or performing the services.

Place a signature line on your standard form, above a statement acknowledging consent to your terms and conditions and ask the other party to sign.  Usually a signature of consent will bind the party who signs.

If you need help and guidance on procedures for entering into contracts or any issues relating to a “battle of the forms” then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com


How Banks are Cashing in on Wills image

How Banks are Cashing in on Wills

Recent headlines have reported how banks are now cashing in on Wills.

During the 1990s and early 2000s, banks offered customers low cost Wills (or sometimes even free Wills) but the small print allowed the bank to charge extortionate rates to act as Executors. It is reported that banks are expecting billions of pounds of revenue from their Will writing services and administering estates and in some cases their fees have been over £12,000 to administer an estate as they look to charge a fixed fee PLUS a percentage of the deceased’s wealth.

If you or a loved one has made a Will through a bank we would urge you to check who you have appointed as Executors and check any small print which you may have signed. If you are unsure then please speak with one of our lawyers in the Wills and Probate team who can look at your existing Will with you. It may be appropriate to make a new Will which revokes any previous Will you have made which could save your family thousands of pounds when your estate needs to be administered.

In the majority of cases, when someone has passed away we can provide the family with a quote of how much the legal fees will be so that there are no nasty surprises once the administration is complete.

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Gemma Mayer LLB

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Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

Daven Naghen LLB

"Daven provided an excellent service, from attending the first interview with me to the final court appearance. He filled me full of confidence that he would defend me to which he did and come out with an excellent outcome in view of my position that I had put myself in."

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

Mike Pepper gave us excellent advice. He was always most helpful and accommodating giving lucid explanations every step of the way. Thank you Mike.

Claire Smith FCILEx

Claire Smith has been amazing in every way. I highly recommend her and I am so grateful for all her help. She’s professional on all levels, reliable, extremely organised and I will be recommending her to everyone. I’m very lucky to have had her representing me and I can’t thank her enough. She is an asset to Maples. Thanks so much Claire!