The following CMS Guide on Battle of Forms situations illustrates how this important issue in commercial contracts is addressed in various countries worldwide. This CMS Guide addresses commercial contracts between companies (hereinafter also “B2B contracts”). In certain cases, the country chapters also refer to specific provisions applicable to consumers, without outlining them in detail or comprehensively.
In commercial contracts, each party usually makes reference to its “own” standard terms and conditions (hereinafter “Ts&Cs”). For example: in a sales contract, the seller refers to his standard delivery terms in his offer document, whereas the purchaser refers to his standard purchase conditions in his order document. Usually, both Ts&Cs contradict each other in important areas, e.g. when it comes to warranty rights or limitation of liability. The question which Ts&Cs apply, or if any apply at all, is commonly described as the “Battle of Forms”.
Generally, a Battle of Forms situation can be addressed in two ways which will be presented from a general perspective under no. 3 of this Introduction and specifically in the individual country chapters. To apply either method to address a Battle of Forms situation, however, requires that the respective Ts&Cs have been validly agreed on between the parties; i.e. validly included in the contractual relationship. Thus, in this Guide, before illustrating which rule applies to Battle of Forms situations, under no. 2 of this Introduction we describe how Ts&Cs can be included.