Battle of the Forms in UK Law

If, however, it is clear that the neither party ever intended the seller's terms to apply and always intended the purchaser's terms to apply, it is conceptually possible to arrive at the conclusion that the purchaser's terms are to apply.

The judge found that Amphenol acknowledged the purchase orders by sending an acknowledgment to Tekdata. In law it could only be at that date at earliest that a contract for the purchase and sale of the specified connectors came into existence.

In my judgment, it is not possible to lay down a general rule that will apply in all cases where there is a battle of the forms. It always depends on an assessment of what the parties must objectively be taken to have intended.

The better way is to look at all the documents passing between the parties - and glean from them - or from the conduct of the parties whether they have reached agreement on all material points ven though there may be differences between the forms and conditions printed on the back of them. If differences are irreconcilable - so that they are mutually contradictory - then the conflicting terms may have to be scrapped and replaced by a reasonable implication

The modern commercial practice of making quotations and placing orders with conditions attached, usually in small print, is indeed likely, as in this case to produce a battle of forms. The view taken by the learned judge was that the battle should extend over a wide area and the court should do its best to look into the minds of the parties and make certainassumptions in my judgment, the "battle has to be conducted in accordance with set rules.

DL's argument was that its acknowledgement of order was a counter offer, rather than an acceptance of SHL's order. It submitted that its counter offer was accepted by SHL taking delivery of the goods. HHJ Havelock-Allan concluded that the words "Delivery based on our General Terms" at the foot of the acknowledgement of order was not sufficient to convert the acknowledgement of order into a counter offer.

The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised in negotiations as inessential.