Battle Of The Forms

What does Battle Of The Forms mean in American Law?

The definition of Battle Of The Forms in the law of the United States, as defined by the lexicographer Arthur Leff in his legal dictionary is:

The standard term for a conundrum in the law of contracts and sales. Buyer sends an order to seller. His form contains terms A, B, C, D, and E. Seller “confirms” the order on his form, which contains terms A, B, C, D, and F. Is there a contract between seller and buyer, and if so, what are the terms?

Under older views of contract law, there would be no contract. Unless D, E, and F were totally trivial, seller”s form would not be an acceptance of buyer”s order, but a counter offer; there could be no contract unless the parties agreed to substantially the same set of terms.

The truth of the matter seems to be that in many instances neither party wishes (or, given the volume of modern bureaucratic business practice, is economically able) to devote the attention necessary to get actual agreement to all terms of a deal. Each would prefer to have the contract wholly on its own terms, but would prefer to “no deal” a deal on the terms mutually accepted, with the question of the other terms left to subsequent determination, either by not becoming relevant in the instance (e.g., the disclaimed warranty is never breached), or by subsequent negotiation or litigation. The parties will each maneuver to make their terms the terms, but not to the extent of actually bringing about unambiguous actual agreement. But what is the law to do when D is a fall warranty, D is a disclaimer of any warranty, and the warranty question becomes important? There is no technical solution. But see U.C.C. § 2-207 for a recent (and not notably successful) statutory attempt to come to grips with it.