Escape from the Battle of the Forms: Keep it Simple, Stupid

Abstract:     
This Article reviews the history of the "battle of the forms" issue arising when contracting parties submit conflicting terms to each other in attempting to form a contract and how courts have resolved issues arising from this, both under the orignal Uniform Cmmercial Code (UCC) Article 2 and the Revised Article 2. The author reviews the economic circumstances that gave rise to the current use of standard form contracts, such as lower transaction costs and the ability of a company to control the terms and the discretion of its personnel. He discusses how battle of the forms issues were resolved before Article 2 of the UCC was adopted, using common law interpretation tools such as the "last shot" and "mirror image" rules. The author then reviews the motivations for implementing UCC Section 2-207, and surveys the problems that this section has created for the ability of courts to provide consistent resolution to battle of the forms disputes given ambiguities in the code's wording. He then reviews the Revised Section 2-207, comparing the old and new versions of the section, and discusses both how the revision may change how courts resolve battle of the forms disputes and the problems that still remain. The author ultimately proposes a more straightforward solution to the battle of the forms problem that has the advantages of the certainty provided by common law rules with the flexibility to consider the particular circumstances of a given transaction.

Number of Pages in PDF File: 34

Keywords: Uniform Commercial Code, UCC, Article 2, UCC Section 2-207, battle of the forms, contracts, contracts law, standard form contracts, Revised Section 2-207, statutory interpretation

JEL Classification: K12

Accepted Paper Series