Last Friday judgment was given on a trial of a preliminary issue for that age-old skirmish of the ‘battle of the forms’. The phrase means that two parties cannot agree which party’s terms the contract was concluded on. Businesses often have their own standard terms and conditions appended to various or all documents like invitations to tender, quotes, tenders, purchase orders, order acknowledgements, delivery notes and invoices.
So if each party asserts that their shining knight, heavily armed with terms and conditions, prevails then it is quite common that the court is needed to preside over the tournament. The answer to the question of who struck the ‘mortal blow’ depends on when the contract is deemed to have formed.
In last week’s case of Transformers & Rectifiers Ltd v Needs Ltd ( EWHC 269 (TCC)) the judge found that neither party’s shining knight had managed to hit home and in fact none of the terms and conditions relied upon had taken legal effect.
The purchaser’s terms and conditions were printed on the back of the purchase order, but there was no reference to them on the front of the purchase order and there was evidence over two decades of dealing that the purchase orders were often given by fax (remember those) or email, where the terms and conditions were not transmitted. The judge held that it had not been made clear that the purchaser intended to rely on such terms and conditions, so no win. A win for the supplier then? No, because it hadn’t drawn sufficient attention to its intended terms and conditions either. So the knights hadn’t even been taken out of the castle, let alone had a fight!
If you want to win the battle, don’t leave it to chance or blind faith on your ‘infallible’ knight. Get certainty on the terms you want before the battle is determined for you.