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Battle of the forms a new chapter

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In the past year the Court of Appeal has reconsidered the classic battle of the forms scenario during contractual disputes, ever so slightly changing the law that has been in place for the last thirty years. When contractual disputes occur a key issue to consider is the exact terms and conditions originally agreed when the contract was formed. Often in the course of business coIn the past year the Court of Appeal has reconsidered the classic "battle of the forms" scenario during contractual disputes, ever so slightly changing the law that has been in place for the last thirty years. When contractual disputes occur a key issue to consider is the exact terms and conditions originally agreed when the contract was formed. Often in the course of business companies will use standard business forms to dictate the terms of the contract, however, despite a legally binding contract being formed, often these terms conflict leading to a legal dispute as to which party's terms govern the contract. The result in such "battle of the forms" cases has been governed in English law by Butler Machine Tool Co v Ex-Cell-O Corp1 since 1979, but recently the position in English law has been re-evaluated by Tekdata Communications v Amphenol Ltd2 and it is important to look at the implications that the case might have for businesses. The traditional approach adopted in battle of the forms cases was established in Butler Machine Tool – the principle of the "last shot" doctrine. This approach came from first principle, following the more traditional aspects of offer and acceptance. It was held in this case that the last counter-offer made by either party prior to one party beginning to perform their obligations under the contract would make all previous offers void. Each conflicting communication between the parties as to the terms is considered a counter-offer, until the last counter-offer is 'accepted' by performance. The Court of Appeal considered the battle of the forms again this year in Tekdata Communications v Amphenol, confirming that the general rule is still the last shot doctrine. However, it added an important component that this general rule applies unless there is clear evidence of a contrary intention. The first instance judge attempted to deviate from the last shot doctrine, however the Court of Appeal overturned the judgment. The Court of Appeal did however hold that in some circumstances, for example in the context of a long-term business relationship, and from the conduct of the parties there might be sufficiently strong evidence to displace the general rule. Thus in the future, although predominantly in many cases the last-shot doctrine will automatically apply, it will now be possible for parties to argue that there was a contrary intention to the terms and conditions referred to in the last counter-offer. It will be up to the party to provide persuasive evidence to prove this contrary intention, shown from the conduct of the parties in the course of their business and any past deals that may have occurred. • For additional information or comment please contact: Justin Emerson of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.mpanies will use standard business forms to dictate the terms of the contract, however, despite a legally binding contract being formed, often these terms conflict leading to a legal dispute as to which partys terms govern the contract. The result in such battle of the forms cases has been governed in English law by Butler Machine Tool Co v Ex-Cell-O Corp1 since 1979, but recently the position in English law has been re-evaluated by Tekdata Communications v Amphenol Ltd2 and it is important to look at the implications that the case might have for businesses. The traditional approach adopted in battle of the forms cases was established in Butler Machine Tool the principle of the last shot doctrine. This approach came from first principle, following the more traditional aspects of offer and acceptance. It was held in this case that the last counter-offer made by either party prior to one party beginning to perform their obligations under the contract would make all previous offers void. Each conflicting communication between the parties as to the terms is considered a counter-offer, until the last counter-offer is accepted by performance. The Court of Appeal considered the battle of the forms again this year in Tekdata Communications v Amphenol, confirming that the general rule is still the last shot doctrine. However, it added an important component that this general rule applies unless there is clear evidence of a contrary intention. The first instance judge attempted to deviate from the last shot doctrine, however the Court of Appeal overturned the judgment. The Court of Appeal did however hold that in some circumstances, for example in the context of a long-term business relationship, and from the conduct of the parties there might be sufficiently strong evidence to displace the general rule. Thus in the future, although predominantly in many cases the last-shot doctrine will automatically apply, it will now be possible for parties to argue that there was a contrary intention to the terms and conditions referred to in the last counter-offer. It will be up to the party to provide persuasive evidence to prove this contrary intention, shown from the conduct of the parties in the course of their business and any past deals that may have occurred. For additional information or comment please contact: Justin Emerson of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.

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