The battle of forms (contract law) in Slovenia

National law
Under Slovenian law, Ts&Cs are binding for the parties if the Ts&Cs are included in the agreement. The consent for the use of Ts&Cs may be given either expressly or implicitly.

The Ts&Cs are binding for the parties if the wording of the Ts&Cs is included in the agreement or through a mere reference to the Ts&Cs in the agreement. An attachment or a reference to specific Ts&Cs in an offer is sufficient (provided the offer fulfills the conditions for an agreement). The Ts&Cs shall be published in a customary manner.

However, the Ts&Cs may be considered part of the agreement even though the agreement does not include or specifically refer to them. If a party knew or should have known of the mere existence of the Ts&Cs (therefore not even the actual wording) when the agreement was concluded, a consent for the use of Ts&Cs is deemed given, provided the Ts&Cs were published in a customary manner.

It is, for example, deemed that the party was aware of the existence of the Ts&Cs if (i) they are generally used in connection with a certain type of agreements, (ii) they are published in a customary manner, or (iii) if the use of the Ts&Cs is customary between the specific parties. An explicit notice about the Ts&Cs or their delivery to the other party is not required.

CISG
From a Slovenian law perspective, under the CISG, the same situation as under national law applies.

National law
If a second party accepts the offer of the first party by referring to its own Ts&Cs, it is considered a new offer, since the conditions of the agreement are changed. If the first party accept this new offer, the agreement is concluded under the second party's Ts&Cs. In this case, the Last-Shot Rule applies. However, if the first party does not accept the new offer, the agreement is not concluded at all.

CISG
From a Slovenian law perspective, under the CISG, the same situation as under national law applies.

CMS Reich-Rohrwig Hainz
Bleiweisova 30
1000 Ljubljana
Slovenia