Battle Of The Forms

• Published date: 29 August 2023
• Subject Matter: Corporate/Commercial Law, Contracts and Commercial Law
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Roddy Forgie

The battle of the forms occurs when each party to a contract attempts to incorporate their own standard terms and conditions.

In practice, parties often seek to conclude deals quickly and will use standard forms containing T&Cs to do so, as opposed to negotiating the terms of the contract individually. This is particularly common amongst contracts for the supply of goods or services. The problem is that these T&Cs are bound to conflict with each other, in which case only one party's T&Cs can prevail. There may only be one winner in the battle of the forms.

The 'last shot' approach

The Scottish courts traditionally resolve the battle of the forms on the principle of offer and acceptance. The general rule is that the last set of T&Cs that are put forward before contractual acceptance occurs will apply to the contract.

This analysis was adopted by the court in Grafton Merchanting GB Ltd v Sundial Properties Ltd [2013] 1 WLUK 643. This case concerned an action for payment in which both parties contended that their T&Cs applied to the contract. The defender had completed an application for a trade credit account which contained the pursuer's T&Cs. However, when the defender submitted their purchase order, this was subject to the defender's T&Cs. The court held that by submitting the purchase order, the defender had made a counter-offer to contract on its own conditions. The pursuer then processed that order and by doing so accepted the defender's counter-offer. The result was that the defender's T&Cs applied to the contract.

The 'last shot' doctrine is typically the default solution in a battle of the forms. However, there is a risk that this approach could encourage inappropriate attempts to be the firer of the last shot who secures the T&Cs. For example, the purchaser may respond to a supplier's acknowledgement of order form with a further attempt to instate their own T&Cs into the contract. This is likely to conflict with the normal industry practice for concluding deals and undermines the purpose of concluding deals on standard terms, which is to keep exchanges to a minimum and conclude contracts as efficiently as possible.

Over-ruling the 'last shot' approach

In Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 1209,the Court held that while the last shot approach should be adopted in most cases, it may be displaced where the documents exchanged between the parties and their conduct suggest that other terms were intended to prevail.

The Court of...