When Form 5495 Agreements 2017-2023

We will now address one of the thorny issues in contract law that we will consider this year: the so-called Battle of the Forms. We've previously learned that to create a contract, an offer and acceptance must be the mirror image of each other. If the offeree attempts to accept but changes any non-trivial term of the offer, it is not accepted. Instead, he has made a counteroffer. Given these basic rules of contract formation, problems arise when parties use pre-printed forms to contract, forms containing their own terms and conditions often referred to as boilerplate. The use of such forms is common among large commercial parties. Not surprisingly, the standard terms that appear in pre-printed forms tend to favor the party sending the form. In general, commercial parties are interested in the major terms of a contract, such as description, price, and quantity. Given how common the use of pre-printed forms has become in today's commercial world, parties tend not to haggle over the standard terms and conditions in boilerplate. Therefore, when such forms are used for contracting, there are likely to be conflicts between the terms of the parties' respective documents. Nonetheless, in the vast majority of cases, such conflicts are irrelevant because parties undertake and complete their contractual obligations without any dispute, entirely oblivious to the fact that the documents they exchanged contain conflicting provisions. Each side fulfills its duties, the work is completed, payment is made, and everyone is happy. But when a dispute does occur, the question arises as to which party's terms and conditions govern the dispute. The common law principles of contracting lead to the so-called last shot rule. Given the mirror image rule, every time a document with conflicting terms is exchanged during negotiations, it will effectively be a counteroffer. At some point, one...