Battle Of The Forms ' Will The "last Shot" Doctrine Always Prevail?

• Published date: 04 May 2023
• Subject Matter: Corporate/Commercial Law, Corporate and Company Law, Contracts and Commercial Law
• Law Firm: Weightmans
• Author: Robert Jones and Lucy Meakins

How can a party seek to ensure that their standard terms and conditions prevail in the "battle of the forms?"

What steps should be taken into consideration when drafting terms and conditions?

In an ideal world, businesses seeking to enter into a contractual relationship would by default incorporate the same set of standard terms and conditions into an agreement. However, in reality, it is often the case that businesses incorporate competing standard terms and conditions when entering into contractual agreements. Therefore, how can a party seek to ensure that their standard terms and conditions prevail in the "battle of the forms?"

The "battle of the forms" in a contractual dispute

The phrase "battle of the forms" is often referred to by legal professionals in the context of commercial contracts. This is where parties seeking to enter into an agreement attempt to incorporate their own standard terms and conditions into the contract. For instance, party A makes an offer to party B which incorporates its own standard terms and conditions and Party B then accepts the offer with its own competing standard terms and conditions.

The court has discretion when determining which party's standard terms and conditions will prevail. Difficulties can arise with "battle of the forms" disputes ultimately because it is a matter of interpretation for the court to determine what has been agreed between the parties.

In situations where the contract has already commenced before the position on whose terms applied was made clear, should a matter proceed to trial, the court must decide the nature of the position. Each matter will be assessed on its own merits and the court's discretion to order the following possible outcomes:

• the parties have contracted on party A's terms and conditions
• the parties have contracted on party B's terms and conditions
• the parties have contracted on alternative implied terms and conditions
• no contract has been formed between the parties.

What will the court take into consideration when determining which party prevails?

The "last shot" doctrine

Ordinarily, where two businesses are negotiating terms of a contract and each party wants to contract on its own terms, the battle is often won by the party who fired the "last shot." This refers to the party who last put forward their terms without being rejected by the other party.

However, it appears that the last shot doctrine can be displaced where parties are able to show that they intended for...