Battle of The Forms in Texas

Battle of The Forms in Texas

Most parties believe that whichever business sends the final form is the one left standing and therefore should be the controlling form for legal purposes if a dispute arises. However a more detailed analysis of Texas case law interpreting its adopted version of the Uniform Commercial Code (UCC) dictates that such a result is not the usual outcome.

Excerpt:

Many businesses exchange one or more forms when purchasing or selling goods. Each of the parties' forms will have attached, or refer to, the party's own terms and conditions for sale or purchase. In this "battle of the forms" most parties believe that whichever business sends the final form is the one left standing and therefore should be the controlling form for legal purposes if a dispute arises. However a more detailed analysis of Texas case law interpreting its adopted version of the Uniform Commercial Code (UCC) dictates that such a result is not the usual outcome. This article will review the generally accepted practice under the UCC, the practice under Texas case law, and will end with a discussion of who is left standing in the "battle of the forms".

I. General UCC Analysis

Under traditional UCC analysis, a contract is formed where there is an offer, acceptance, consideration and performance. The type of form, or forms, involved (quote, bid, proposal, purchase order, acceptance, acknowledgement or other document) is not controlling; by contrast, it is important to determine which document or other indicia constitutes the offer and which document or other indicia constitutes the acceptance; and finally all later documents are disregarded.

The contract between the parties will consist of all terms and conditions (regardless of which form contains such terms and conditions) contained in the offer and acceptance which are not in conflict. In addition, if the acceptance contains differing terms and conditions, the terms and conditions of the acceptance prevail unless the offeror has taken or takes one of three actions:

1. The original offer, which may be a bid proposal, purchase offer or other document, contained language which prevented any terms and conditions from being changed in any acceptance document;

2. The new terms and conditions are a material alteration; or

3. The offeror notifies the counter party that the different term and conditions contained in the acceptance are rejected. [footnote omitted]

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