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


Dementia Friends image

Dementia Friends

Maples Solicitors are proud to announce that they have now joined to become Dementia Friends which is an Alzheimer’s Society initiative.

The private client department of Maples Solicitors prepare Wills and Lasting Powers of Attorney on a regular basis and this often involves dealing with clients who are suffering from dementia. The private client team pride themselves on spending as much time as is necessary to assist all of their clients, but those suffering from dementia often require additional assistance and time to ensure that they have fully understood the legal documentation that they are creating. The private client department are regularly complimented on the way they deal with such clients, whether this be explaining things to them in a clear and uncomplicated manner, spending time with them or putting them at ease.

It is a misconception that anyone suffering from dementia cannot make a Will or Lasting Power of Attorney. Only if someone lacks sufficient mental capacity are they unable to make such a document. It is therefore vitally important upon any diagnosis of dementia that legal advice is taken as soon as possible to make sure that your affairs are in order so that it is easier for your family to deal with your affairs if you are unable to do so yourself.

To become Dementia Friends, Maples Solicitors have pledged to develop their understanding of dementia and continue assisting clients suffering from dementia with their legal affairs in a respectful, friendly and efficient way that is not daunting making the process as easy as possible.

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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 GCILEx

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.

Donna Sandison FCILEx

Donna has been helpful and professional every step of the way during the process. Always on hand to answer any queries and totally professional and friendly at all times.