Winning the Battle of the Forms in the contract

Two parties in a business to business transaction or in a project often find themselves in a situation where one has quoted using its standard form terms and conditions and the order is made using a purchase order with conflicting terms and conditions. Work is then started, and there is ambiguity in relation to which terms and conditions govern the relationship, or even whether a contract has come into existence. This is called the "Battle of the Forms".

Case study

The procurement manager of an organisation emailed the potential supplier to send a quotation. The supplier emailed the quotation, with the supplier's terms on the back. The procurement manager emailed a purchase order with the buyer's terms on the back. Upon receipt of the purchase order the supplier did not acknowledge receipt and without notice commenced work. Unfortunately, the product supplied was not fit for purpose, causing the buyer considerable financial loss. The buyer sought to claim