Even where you have developed terms and conditions of purchase which protect your position on paper, they will not assist if they do not apply to a particular transaction - the seller will equally wish his terms and conditions of sale to apply and in the event that a buyer’s terms conflict with those of the seller, a ’battle of the forms’ is said to ensue.

Supply before the Order is Placed

In order to optimise the chances of your terms and conditions of purchase applying to the transaction, they should be given to your supplier in an easily legible and accessible format the outset of the trading relationship. At the latest, they must be specifically brought to his attention before the order is accepted if supplied afterwards they may not apply.

Prevalence of Terms

It is common to have a reference in your terms and conditions of purchase themselves that your terms will apply to this transaction regardless of what else is said to the contrary in the seller’s terms. However, where both your terms and the seller’s terms contain such a clause (they commonly do), the effect may well be for the clauses to cancel one another out.

Ultimately, ensuring that you get the last word before the deal is concluded and dogged persistence in insisting on the application of your terms is still probably the most certain way of winning the battle. It is sensible, however, to do more than simply insist on your terms and go ahead with your order assuming you have prevailed.

A more constructive and co-operative approach to this aspect of contract management may be to agree with the seller whose terms and conditions apply to subsequent transactions either as part of a supply contract or otherwise at the commencement of the trading relationship. However it must be acknowledged that many ’battle of the forms’ are decided on commercial muscle rather than legal guile.