It's a pretty common situation: You have standard
T&Cs, and you get everyone to sign up to them when doing
business. But sometimes the other side insists on using their own
terms. So what to do?
Fight! Well, not really here's what you need to
This means war. When two parties squabble over
whose standard terms should apply, lawyers call this the battle of
the forms. Yes, equating a contract negotiation to battle really
does make our day more exciting (as does stretching metaphors to
breaking point, so read on).
The scattergun won't win this battle.
Don't agree to both contracts. In this case an "I'll
sign yours, and you sign mine" approach won't cut it. The
terms won't match up and you'll be seriously confused when
it comes to figuring out what was agreed. Instead agree early on
whose T&Cs to use as the starting point for negotiation. Bear
in mind that it might not make sense to use your own standard terms
if you're buying a highly specialised or bespoke product or
Last shot wins, soldier. A common approach is
to accept terms by issuing your own document that includes your own
standard terms. If you do this you're not actually accepting
the other party's terms, you're making a counteroffer.
This means that if different terms are pinging between the parties
(say, on the back of the quote or order acknowledgment) the last
set despatched before acceptance or performance will apply.
Don't miss the last shot. Even after
signing a carefully agreed contract operational staff might receive
additional terms on the back of a PO or bill which try to impose
additional terms. This could be down to a standard form document
being used (unintentional) or underhand tactics (sneaky, we know).
Make sure your staff are savvy and recognise that any legal terms
need to be signedoff by someone who gets this. The risk is the
new terms might apply to the relationship, and unlucky you
lost the battle.
Make love, not war #cheesy. Optional, really,
but by building a great relationship with the other side you can
agree a set of terms that both parties can live with, and
you'll be on the right foot for the rest of the contract
We do not disclaim anything about this article. We're
quite proud of it really.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Do not depart from the contract terms, or encourage the other party to do so, unless you plan to alter the contract.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).