Overview

It is not uncommon for commercial parties to enter into agreements to supply and purchase goods or services without signing a formal written contract. In that situation, each party may send the other its standard terms and conditions and then, in the event of a dispute, argue that its own terms and conditions form the basis of the contract between the parties. This is known as the “battle of the forms”.

The Court will try to resolve an instance of the battle of the forms by reference to normal principles of offer and acceptance. It will consider whether either side could be taken, from an objective viewpoint, to have accepted the other side’s terms and conditions either expressly or by its conduct. This may be done by one side beginning to perform the contract without objecting to the other side’s terms and conditions.

Therefore, the battle is often won by the party that “fires the last shot”; i.e. the last party to send its standard terms and conditions to the other side before the parties started carrying out the terms of the contract.

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