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4 Cards in this Set
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The Battle of the Forms (Tennessee Stand-Off Problem) |
Two parties fighting for common K. Each equipped with own set of terms. Parties trying to get K with their own terms. English law wants to find a clear agreement. Courts apply orthodox offer and acceptance reasoning. |
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Butler Machine Tool Ltd v Ex-Cell-O Corporation (1979)
The Battle of the Forms (Tennessee Stand-Off Problem) |
Ex-Cell-O wished to purchase a machine from Butler. Butler sent out a quotation of £75,535 along with a copy of their standard terms of sale. The terms included a price variation clause and a term that the seller's terms would prevail over any terms submitted by a purchaser. The machine would be delivered in 10 months. Ex-Cell-O put in an order for the machine at the stated price and sent a set of their terms which did not include the price variation clause. The order contained an acknowledgement slip which required a signature by Butler and was to be returned to Ex-Cell-O. This slip stated that the contract would be subject to the terms stated overleaf. Butler duly signed the slip and returned it. The machines were then delivered and Butler sought to enforce the price variation clause and demanded an extra £2,893. Ex-Cell-O refused to pay. Held: The offer to sell the machine on terms provided by Butler was destroyed by the counter offer made by Ex-Cell-O. Therefore the price variation clause was not part of the contract. The contract was concluded on Ex-Cell-O's terms since Butler signed the acknowledgement slip accepting those terms. Where there is a battle of the forms whereby each party submits their own terms the last shot rule applies whereby a contract is concluded on the terms submitted by the party who is the last to communicate those terms before performance of the contract commences. |
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McKendrick "The Battle of the Forms and the Law of Restitution" (1988) 8 Oxford Journal of Legal Studies 197 |
To Be Read |
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Tekdata Intercommunications v Ampenol Ltd (2009)
The Battle of the Forms (Tennessee Stand-Off Problem) |
The court considered which of two sets of contractual terms applied. The parties had dealt with each other over a long period. Under standard offer and acceptance the seller’s terms would apply. The buyer appealed, saying the court should look to the history of relations between the firms. |
