Volume 17, Issue 4 (2013)
CLR 2013, 17(4): 43-62 |
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Parsapour *, M B, Rajabi2 E, Sharifi3 F. Battle of the Forms; (Comparative Study on Some of National Legal Systems and International Instruments). CLR 2013; 17 (4) :43-62
URL: http://clr.modares.ac.ir/article-20-5540-en.html
URL: http://clr.modares.ac.ir/article-20-5540-en.html
1- , 1. Assistant Professor, Department of Private Law, Tarbiat Modares University, Tehran, Iran
2- 2. MA Student of International Trading Law, Shahid Beheshti University, Tehran, Iran
3- 3. MA Student of International Trading Law, Shahid Beheshti University, Tehran, Iran
2- 2. MA Student of International Trading Law, Shahid Beheshti University, Tehran, Iran
3- 3. MA Student of International Trading Law, Shahid Beheshti University, Tehran, Iran
Abstract: (10188 Views)
Battle of the forms is a situation in which one party sends the other an offer based on their commercial standard terms or while negotiating, refers to the form that contains its general conditions, and the other party, instead of explicitly accepting the conditions within the sent form, would rather send the first offer or the form on which its general conditions have been written or refer to the form incorporating its own general conditions through negotiation. Then both parties would attempt to perform the contract, without clarifying which form’s conditions govern the contract. There are various perspectives in the national and transnational legal systems regarding whether basically there is possibility of concluding the contract in this case due to non-conforming offer and acceptance, or given the contract was concluded, what conditions would govern it. In this paper, the approaches of some national legal systems (England, France, China, U.S. and the Netherlands), as well as some international instruments, specifically the Principles ofEuropean ContractLaw and the UNIDROIT Principles of International Commercial Contracts have been examined with regard to the battle of the forms. To wrap up the points and discussions presented in this paper, the authors have deduced that, on the subject of the contract’s fate in the battle of the forms, the legal systems of England, France and China have complied with the traditional rule of “Last Bullet”; the legal systems of U.S. and the Netherlands have abided by the “First Bullet” rule, and the Principles ofEuropean ContractLaw and the UNIDROIT Principles of International Commercial Contracts have conformed to the “Knockout” rule.
Keywords: Battle of the forms, The “Mirror image” rule, The “First Bullet” rule, The “Last Bullet” rule, The “Knockout” rule
Received: 2013/12/16 | Accepted: 2014/02/20 | Published: 2014/03/19
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