Contract Law - Seminar 6 Acceptance Morgan P, 'Battle of the Forms: Restating the Orthodox' [2010] 69(2) Cambridge Law Journal (CLJ) 230-232 Butler Machine Tool Company v Ex-cell-O Corporation [1979] adopts a 'last shot' approach to battle of the forms cases Tekdata Interconnection Ltd v. Amphenol raised the question whether in the battle of the forms there can be circumstances where traditional offer and acceptance analysis can be altered by reference to the conduct of the parties over long term relationship " The traditional view in Tekdata is that if there was no further documentation passed between the parties and if Tekdata took delivery of the components, the contract would be on the terms of Amphenol's acknowledgment. " In Butler, Lord Denning gave an alternative analysis - the traditional analysis of offer, counter-offer, rejection and acceptance are out of date - said even though there may be difference between the forms the better way is to look at the documents passing between the parties or their conduct to see whether they have reached an agreement on all material points - Through reliance on this judge in Tekdata held that Tekdata's terms were to apply, parties hadn't intended Amphenol's terms to apply " Court of Appeal dismissed this - Longmore LJ - Butler wasn't precedent for abandoning traditional analysis. Reasserted traditional offer and acceptance analysis whilst noting limits to it o It isn't applied where 'the documents passing between the parties and their conduct show that their common intention was that some other terms were intended to prevail'. - difficult to show in battle of the forms unless clear course of dealing between the parties " In Tekdata parties had the opportunity to agree a single set of terms but didn't " Amphenol signed certificate of conformance required by Tekdata's terms - was noted parties often do things for which they aren't obliged. " General rule applies in standard battle of the forms cases, in other cases may be an exception based on assessment of what parties must objectively be taken to have intended " Dyson J didn't feel Tekdata was an exception " Pill L.J. agreed that the focus is on what the parties must have taken to mean objectively at the time of the contract, added there could be a case in which a court would be entitles to conclude that one of the parties hadn't intended terms and conditions attached to its acknowledgement would apply " Court of Appeals noted in rare conditions it's possible to conclude that the purchasers terms should apply - would happen when clear that neither party intended the sellers terms to apply and always intended purchasers terms to apply - promotes commercial certainty " Court of Appeals was correct to reject Lord Denning's rejection of the traditional approach. His approach shows insufficient guidance in determining if an agreement has been reached.
Stone R, ‘Forming Contracts without Offer and Acceptance, Lord Denning and the Harmonisation of English Contract Law' [2012] 4 Web Journal of