The Unified Field Solution to the Battle of the Forms Under the UN Sales Convention

Abstract

The UN Sales Convention is easily the most successful effort in history to unify international private law, but it has been marred by a structural defect from inception. In the charged political environment of the 1970s, the drafters simply were unable to agree on the treatment of standard business terms in the formation process (the so-called “battle of the forms”). The result has been substantial judicial confusion and substantial scholarly controversy.

The goal of this Article is no less than to provide a comprehensive, indeed definitive, solution to this most enduring controversy. As I explain here, the flaw in the two traditional approaches to this issue is that each proceeds from a stylized assumption about how parties express contractual assent. A refined understanding of the battle of the forms must begin, however, with a recognition that the subject matter in fact is not a phenomenon, but rather a diverse spectrum. Seen in this way, no rigid rule or fixed assumption can begin to capture the nuanced reality.

The proper solution instead is to be found in the core values that unify the Convention’s contract formation scheme. These formation values permit, indeed require, a flexible approach that is comprehensive in scope, but individualized in application. With a nod to physics, I describe this approach as the “unified field solution”—for it incorporates the existing theories, but also recognizes that a single set of principles applies across the full spectrum of agreement processes in modern international contracting.

Keywords: battle of the forms, CISG, international sales contract, UNCITRAL, contract formation