TRADITIONAL OFFER AND ACCEPTANCE ANALYSIS APPLIED TO ‘BATTLE OF THE FORMS’ CASE

In Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 1209, [2009] All ER (D) 208 (Nov) the Court of Appeal applied the traditional offer and acceptance analysis to a ‘battle of the forms’ case. The value of the traditional analysis was held to be that it provides a degree of certainty which is both desirable and necessary in order to promote effective commercial relationships. On this basis the Court of Appeal held that, where A makes an offer on its terms and conditions and B accepts that offer on its own, different terms and conditions and, without more, performance follows, the contract between the parties is governed by B’s terms and conditions. This approach is not without its exceptions but it was held that it is difficult to displace the traditional analysis in the absence of a clear course of dealing between the parties which results in an outcome different from that achieved as a result of the application of the traditional analysis.

The facts

The claimants, Tekdata Interconnections Ltd, purchased connectors from the defendants, Amphenol Ltd. The claimants alleged that certain of the connectors were delivered late and were not fit for purpose or of merchantable quality. In advancing their claim, the claimants relied upon their own terms and conditions of business. The defendants relied by way of defence upon their own terms and conditions of business which contained terms which limited their liability for any breaches of contract. It was therefore necessary for the court to decide which terms and conditions of business governed the contract (neither party having contended that the parties had failed to conclude a contract at all). This required the court to solve the ‘battle of the forms.’