obvious weakness of separating out agreement ‘in principle’ from the detailed terms on which any such agreement will rest). It seems clear that the courts could fruitfully explore restitutionary principles in this area when considerable work has been carried out under an assumed contract rather than struggle to find the last shot when the terms of the parties are diametrically opposed. However, it may be that any model has flaws, but

The criticism of the traditional approach is that it encourages businessmen to fire salvoes at each other in the hope of firing the last shot, that it may put a party in an invidious position of either not performing or performing and by implication accepting the other’s standard terms, and that it allows one party to withdraw even though the other might then have substantially performed. The main criticism of Lord Denning’s approach is said to be that it will not discourage the firing of salvoes, that virtually any term can affect the price, and that terms are difficult to categorise. In practice, however, it is improbable that any rule will have much effect on the way businessmen operate. Fundamentally what is wrong with Lord Denning’s approach is that, like ss 2-207 of the Uniform Commercial Code, it conflates the problem as to whether an ‘acceptance’ differing from the terms of the offer should amount to a rejection, with the problem as to whether there is a contact at all. In many cases it is reasonable to suppose that a differing ‘acceptance’ is not a rejection. Going on to the next step and recognising that there is a binding contract is quite something else, however. As Professor Waddams points out, there is a basic contradiction in holding that a definite expression of acceptance is an acceptance, even though it states terms additional to or different from those offered.