clause whereby it was a condition of acceptance that goods would be charged at prices ruling at the date of delivery. The defendant buyers replied on 27 May 1969, giving an order with differences from the sellers’ quotation and with their own terms and conditions, which had no price variation clause. The order had a tear-off acknowledgment for signature and return which accepted the order ‘on the terms and conditions thereon’. On 5 June 1969, the sellers, after acknowledging receipt of the order on 4 June, returned the acknowledgment form duly completed with a covering letter stating that delivery was to be ‘in accordance with our revised quotation of 23 May for delivery in ... March/April 1970’. The machine was ready by about September 1970, but the buyers could not accept delivery until November 1970. The sellers invoked the price increase clause and claimed £2,892 for the increase due to the rise in costs between 27 May 1969 and 1 April 1970, when the machine should have been delivered. Thesiger J gave judgment for the sellers for £2,892 and interest. The buyers appealed. The Court of Appeal unanimously reversed the first instance decision, all three judges feeling that the conclusive act was the sellers’ return of the tear-off acknowledgment slip. However, the reasons given by the judges for arriving at their decision differed. Bridge LJ and Lawton LJ broadly applied the standard model of ‘offer – counter-offer – acceptance’ to this ‘battle of the forms’, although both of them were clearly aware of the difficulties that this would cause. Lord Denning’s approach, not untypically, ranged much more widely. Unlike the other two judges, who can be seen to adopt a broadly ‘last shot’ theory (that is, that the ‘battle’ is won by the person who submits their terms last), Lord Denning was prepared to countenance a number of other possibilities. The following passages serve to indicate these divergences in approach: Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd [1979] 1 WLR 401, CA, p 402

doi:10.4324/9781843141518-40

Chapter

No Image Available

Chapter

clause whereby it was a condition of acceptance that goods would be charged at prices ruling at the date of delivery. The defendant buyers replied on 27 May 1969, giving an order with differences from the sellers’ quotation and with their own terms and conditions, which had no price variation clause. The order had a tear-off acknowledgment for signature and return which accepted the order ‘on the terms and conditions thereon’. On 5 June 1969, the sellers, after acknowledging receipt of the order on 4 June, returned the acknowledgment form duly completed with a covering letter stating that delivery was to be ‘in accordance with our revised quotation of 23 May for delivery in ... March/April 1970’. The machine was ready by about September 1970, but the buyers could not accept delivery until November 1970. The sellers invoked the price increase clause and claimed £2,892 for the increase due to the rise in costs between 27 May 1969 and 1 April 1970, when the machine should have been delivered. Thesiger J gave judgment for the sellers for £2,892 and interest. The buyers appealed. The Court of Appeal unanimously reversed the first instance decision, all three judges feeling that the conclusive act was the sellers’ return of the tear-off acknowledgment slip. However, the reasons given by the judges for arriving at their decision differed. Bridge LJ and Lawton LJ broadly applied the standard model of ‘offer – counter-offer – acceptance’ to this ‘battle of the forms’, although both of them were clearly aware of the difficulties that this would cause. Lord Denning’s approach, not untypically, ranged much more widely. Unlike the other two judges, who can be seen to adopt a broadly ‘last shot’ theory (that is, that the ‘battle’ is won by the person who submits their terms last), Lord Denning was prepared to countenance a number of other possibilities. The following passages serve to indicate these divergences in approach: Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd [1979] 1 WLR 401, CA, p 402

DOI link for clause whereby it was a condition of acceptance that goods would be charged at prices ruling at the date of delivery. The defendant buyers replied on 27 May 1969, giving an order with differences from the sellers’ quotation and with their own terms and conditions, which had no price variation clause. The order had a tear-off acknowledgment for signature and return which accepted the order ‘on the terms and conditions thereon’. On 5 June 1969, the sellers, after acknowledging receipt of the order on 4 June, returned the acknowledgment form duly completed with a covering letter stating that delivery was to be ‘in accordance with our revised quotation of 23 May for delivery in ... March/April 1970’. The machine was ready by about September 1970, but the buyers could not accept delivery until November 1970. The sellers invoked the price increase clause and claimed £2,892 for the increase due to the rise in costs between 27 May 1969 and 1 April 1970, when the machine should have been delivered. Thesiger J gave judgment for the sellers for £2,892 and interest. The buyers appealed. The Court of Appeal unanimously reversed the first instance decision, all three judges feeling that the conclusive act was the sellers’ return of the tear-off acknowledgment slip. However, the reasons given by the judges for arriving at their decision differed. Bridge LJ and Lawton LJ broadly applied the standard model of ‘offer – counter-offer – acceptance’ to this ‘battle of the forms’, although both of them were clearly aware of the difficulties that this would cause. Lord Denning’s approach, not untypically, ranged much more widely. Unlike the other two judges, who can be seen to adopt a broadly ‘last shot’ theory (that is, that the ‘battle’ is won by the person who submits their terms last), Lord Denning was prepared to countenance a number of other possibilities. The following passages serve to indicate these divergences in approach: Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd [1979] 1 WLR 401, CA, p 402

clause whereby it was a condition of acceptance that goods would be charged at prices ruling at the date of delivery. The defendant buyers replied on 27 May 1969, giving an order with differences from the sellers’ quotation and with their own terms and conditions, which had no price variation clause. The order had a tear-off acknowledgment for signature and return which accepted the order ‘on the terms and conditions thereon’. On 5 June 1969, the sellers, after acknowledging receipt of the order on 4 June, returned the acknowledgment form duly completed with a covering letter stating that delivery was to be ‘in accordance with our revised quotation of 23 May for delivery in ... March/April 1970’. The machine was ready by about September 1970, but the buyers could not accept delivery until November 1970. The sellers invoked the price increase clause and claimed £2,892 for the increase due to the rise in costs between 27 May 1969 and 1 April 1970, when the machine should have been delivered. Thesiger J gave judgment for the sellers for £2,892 and interest. The buyers appealed. The Court of Appeal unanimously reversed the first instance decision, all three judges feeling that the conclusive act was the sellers’ return of the tear-off acknowledgment slip. However, the reasons given by the judges for arriving at their decision differed. Bridge LJ and Lawton LJ broadly applied the standard model of ‘offer – counter-offer – acceptance’ to this ‘battle of the forms’, although both of them were clearly aware of the difficulties that this would cause. Lord Denning’s approach, not untypically, ranged much more widely. Unlike the other two judges, who can be seen to adopt a broadly ‘last shot’ theory (that is, that the ‘battle’ is won by the person who submits their terms last), Lord Denning was prepared to countenance a number of other possibilities. The following passages serve to indicate these divergences in approach: Butler Machine Tool Co Ltd v Ex-Cell-O Corpn (England) Ltd [1979] 1 WLR 401, CA, p 402

ABSTRACT

Lawton LJ: The modern commercial practice of making quotations and placing orders with conditions attached, usually in small print, is indeed likely, as in this case to produce a ‘battle of the forms’. The problem is how should that battle be conducted? The view taken by Thesiger J was that the battle should extend over a wide area and the court should do its best to look into the minds of the parties and make certain assumptions. In my judgment, the battle has to be conducted in accordance with set rules. It is a battle more on classical 18th century lines, when convention decided who had the right to open fire first rather than in accordance with the modern concept of attrition.