Battle of the Forms - who wins?

A legally binding contract requires offer and acceptance. However, it is not unusual for commercial transactions to be negotiated by a series of documents (e.g. request for quotation, quotation, purchase order, acknowledgment of purchase order etc.) each with reference to that party’s T&Cs.

Where each subsequent document seeks to impose different terms, it will amount to a counter-offer which requires acceptance by the other party. The usual position is that the last party to send its document prior to performance will have its T&Cs govern the contract – providing the other party can be said to have accepted it by way of its conduct. But, can this rule be overridden? Certainly Tekdata thought so in Tekdata v Amphenol. The parties had a long standing trading relationship where Amphenol supplied cable connectors to Tekdata, who then supplied various cable assembly products up the contractual chain. Tekdata brought a claim against Amphenol for late delivery and goods not being fit for purpose.

The last pre-contract document was Amphenol’s Acknowledgement of Purchase Order which unsurprisingly referred to Amphenol’s T&Cs. However, Tekdata argued that due to the parties’ trading relationship and agreements with other parties in the contractual chain (where time was of the essence) it must have been the parties’ intention that Tekdata’s T&Cs (as per its Purchase Order) were incorporated. On appeal, the Court said it would require very strong evidence to displace the traditional rule of offer and acceptance where there is a battle of forms, and so Amphenol’s T&Cs were the ones applying to the contract.

COMMENT
A battle of the forms can have a number of consequences, some of which may be surprising to the parties. The message is that a legally binding contract still requires an offer to be unequivocally accepted – whether by words or conduct.