How to avoid Battle of the Forms: last shot wins!

Specialist construction law solicitor, Abbie Chisnall, looks at "Battle of the Forms" when applying terms and conditions within the construction industry.

This article discusses the legal principle of the Battle of the Forms and whose contractual terms apply. It is very common for us to hear from clients that they think their terms and conditions apply as they have been included with their tender document for example. This is not always the case and is a common issue that arises in construction disputes.

Whose terms apply?

A frequent situation between Main Contractor and Sub-Contractor is that the Sub-Contractor issues a tender which is accepted by the Main Contractor. The Sub-Contractor issues their standard terms and conditions with their tender and the Main Contractor issues their standard terms and conditions with their order – so whose terms apply?

In the above situation, the Main Contractor’s terms and conditions would apply if they were sent (or referred to) within the purchase order. This is because of the concept in contract law called "Battle of the Forms", where the last person who issues their standard terms and conditions before the works are commenced, are the terms which are incorporated into the contract between the parties. It sounds dramatic but this is called "he who fires the last shot wins!".

Battle of the Forms contract law

If you want to contract with another party on your own terms, you need to ensure that your terms were the last ones issued before works are commenced. When negotiating work with an employer/contractor on standard terms, pay attention for any subsequent orders or correspondence that may accept your quote/order but is subject to their terms. For your terms to then apply, you need to reinstate them in writing that your terms are to apply.

Common misconceptions

When advising on the above position about whose terms and conditions apply, we often here some common misconceptions. Some of the most common are as followed:

1. "Terms and conditions have to be attached to any tender/purchase order to be incorporated into the contract". This is not true. Terms and conditions only need to be referred to in order to be incorporated, they do not need to be enclosed to be incorporated.
2. "The contract was not signed so it is not valid or we did not agree to their terms and conditions so they do not apply". Again this is not true, if they are the last terms and conditions to be issued before works are commenced, they will be incorporated into the contract.
3. "An invoice which refers to terms and conditions means that our terms and conditions apply". Again, this is incorrect. An invoice is a post-contractual document which is issued after works have been carried out. The contract is based on the contractual document (or sometimes multiple documents) issued between the parties prior to work commencing.

Top tips for getting your terms and conditions incorporated into a contract

1. Seek legal advice if you are unsure on the battle of the forms and how to get your terms and conditions incorporated.
2. Check all correspondence between the parties whilst negotiating the contract and before works commence for any references to standard terms and conditions applying. If they have been referred to by the other party, reinstate yours in writing.
3. Make sure the right people in your organisation understand the battle of the forms. If you have people negotiating the contract who understand battle of the forms, it is more likely that your terms and conditions will be incorporated into the contract. Our Construction Division here at Holmes and Hills cover this in our Introduction to Construction Law training.

The "Battle of the Forms" conclusion

It is not as straightforward as people may hope to get their terms and conditions incorporated into a contract. The key thing to remember is "he who fires the last shot wins".

Please contact the Construction Division if you would like to discuss anything in this article further or have any construction law queries that you would like to discuss. We would be more than happy to attend your offices in person or remotely to offer our 'in-house' training on a variety of topics.

Other articles in the series:

• Condition precedents in the Construction industry