Whose terms are they anyway?

Name me a famous battle. Britain? Hastings? The Somme? The Forms?

Battle of the Forms? This may not be one you are familiar with but in business it probably has a greater day to day impact than any of the others mentioned above.  To take a step back, in simple terms a contract needs an offer by one party accepted by another party.  At the same time, there needs to be the passing of consideration and an intention by both parties to actually enter into a contract.

So what is the “Battle of the Forms”? This is the name given to the situation where the 2 parties to a contract are trying to impose their own term to govern the dealings, rather than negotiating bespoke terms.  For example, a buyer may put in an order and enclose its own terms. The seller may, however, accept the order by sending through its own terms on an invoice.  Alternatively, a seller may give a quote with its own terms attached, but in accepting the order, the buyer sends through its own terms.

As the last set of terms generally prevails, this can be quite clear, particularly if you monitor the exchange of terms; however, where amendments to orders are made or repeat business is entered into, confusion can arise.  It can also be more complex where a quotation is expressed not to be an offer that is capable of acceptance!

If you want to rely on your standard terms, then you need to draw the other party’s attention to them, by more than merely enclosing them on the back of a document.  This can be as simple as referring to them in your correspondence but where there are particularly unusual terms, these should be highlighted.

A further word of warning - things can be complicated if you use different media to sell/purchase things. You need to check that your terms are incorporated whether dealing face to face, by post, e-mail or otherwise.  Also, you may have or need different terms in place for these different media.

If this has raised any questions about your contractual dealings, get in touch with Punk Legal and find out how we can help you.