ABSTRACT
One of the more enduring fields of contention in trade law is known as “the Battle of the Forms”. 1 It arises when merchants exchange letters, emails or forms which at first glance seem to establish a contract but which include—or incorporate by reference—mutually contradictory or at least widely varying standard terms. The root cause of the Battle of the Forms is—as with many battles—a misunderstanding. It is not a misunderstanding between the merchants involved. Rather, it is a misunderstanding between the merchants and their lawyers: merchants, in seeking to structure their transactions more efficiently, seek the aid of lawyers to draft a set of standard terms suitable for them. These terms, or a reference to them, then tend to be included in every future letter sent by the merchants in question. In legal analysis, to this point, every statement which includes a reference to such terms is understood to also say “but only under the following conditions” (followed by the standard terms as conditions). The parties continue to act, however, as merchants do, plying their trade unfettered by the fine print they now include with their correspondence. This is rarely a problem—should the other party also employ standard terms, then it does so because it, too, is a merchant. Both sides act in pursuit of what they perceive as mutual gain, while writing their orders and order confirmations on documents which include their pre-printed legal boilerplate. Most times, they then perform as agreed and nothing more comes of it. When legal difficulties arise, however, it is again lawyers who scrutinize their correspondence. They then often find a discrepancy between the apparent contract formed by the correspondence, on its face, and the conflicting standard terms both sides attempted to include in it. And it appears as though we, as a profession, are prepared to disregard the apparent agreement between the merchants more easily than our colleagues' work.
