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Contract Law - Coursework Example

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The Battle of Forms and the Mirror-Image Rule Name Institution Course Date Q. 1. Consider what is meant by the’ Battle of the forms'. The “battle of the forms” refers to a contest to determine who wins a case if a contract dispute is to be decided by a court1…
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Contract Law
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Contract Law

Download file to see previous pages... Under normal circumstances, one party’s document will have different terms from the other party’s terms thereby begging the question: whose terms governs the contract? This is what leads to what is termed as the “battle of forms.” Such a case was explored by Lord Denning in Butler V. Ex-Cell-O3. In case there is a battle of forms in any transaction, a contract is assumed to have taken effect as soon as the last of the forms is sent and received without any issue or objection being taken to it. Nevertheless, a difficulty arises when it comes to deciding which form or part of the form is a term or a condition with regard to the contract in question. Under some cases, the battle is won by the party that fires the last shot. This is the general rule under the battle of forms4. The last shot rule provides that no contract comes into existence as long as an offer and acceptance does not match. Under such a situation, each party’s reference to its own general conditions is taken as a rejection of the other party’s offer, thereby treated as a counter offer. It is only if one party to the contract accepts the other party’s offer, plus all the conditions prescribed in it that a contract is deemed to have been formed. The terms of the contract in this case refer to those of the party who has managed to ‘fire the last shot.’ In most cases under the battle of forms cases, this becomes the seller5. For instance, by sending the seller a purchase order by making reference to its general conditions, the buyer makes an offer under his personal standard terms. Then, by making reference to his/her own standard terms in the reply the seller makes a counteroffer and consequently rejects the buyer’s terms. The buyer is implied to have accepted this offer through acceptance of its delivery. This was evident in the case between British Road Services V. Crutchley6 . In this case, the court held that Crutchley’s counter offer, which was not objected to by the British Road Services, was valid and, as such, carried the day7. From the case, it is evident that the victory was for the party that fired the last shot. It is worth noting that despite this being the general rule under battle of forms, certain exceptions exist. An exception comes where the victory goes to the party that gets in the blow first. For instance, where one party offers to sell at an express price based on the stated terms on the back and the buyer happens to order the same commodities implying to having accepted the offer on the order form with his own different terms on the back. If the difference happens to be so material to the extent that it may affect the initial price quoted, then the buyer is not supposed to be allowed to take advantage of this difference, not unless he/she notifies the seller regarding the difference. Such was the case between Butler V. Ex-Cell-O8. In the case between Butler V. Ex-Cell-O, it was the sellers who fired the first shot since they expressly made it clear that the contract was to be made only on their terms. Lord Denning alludes that in such a case, the seller should win the battle. Nevertheless, according to the ruling of the case by the court of appeal, the issue at hand was the question of who made the offer against the party that accepted it. As such, since the seller made the offer but the buyer later made a counter offer, which was accepted by the seller by raising no abjection, the buyer carried the day9. Application under ...Download file to see next pagesRead More
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