Battle of the Forms

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Battle of the Forms

Battle of the forms occurs when two companies are in negotiation and, as part of their exchanges, they send each other standard contract forms that are incompatible with one another.

The courts generally have the straightforward task of identifying the offer and acceptance: Hertford Food Ltd V Lidl Uk GMBH [2001]

If it is not possible to find offer and acceptance, there are three possibilities:

1. The Contract is made on the terms of the party whose form was put forward first.

2. The contract is made on the terms of the party whose form was put forward last.

3. There is no contract at all due to a lack of a matching offer and acceptance and lack of agreement.

Butler Machine Tool co Ltd v Ex-Cell O Corp

Lord Denning suggested that the first possibility might apply where the second set of terms is so different that the offeree 'ought not to be allowed to take advantage of the difference unless he draws it specifically.

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