Where parties carry on the long process of negotiation, it may be difficult to pinpoint exactly when an offer has been made and accepted. In such cases the courts will look at the whole course of negotiations to decide whether the parties have in fact reached an agreement at all, and if so when.
This process can be particularly difficult where the battle of forms arises. Rather than negotiating terms each time a contract is made, many businesses try to save time and money by contracting on standard terms, which will be printed on company stationery such as order forms and delivery notes. The battle of the forms occurs when one party sends a form stating that the contract is on their standard terms of business, and the other party responds by returning their own form and stating that the contract is on their terms.
The general rule in such cases is that the last shot wins the battle. Each new form issued is treated as a counteroffer so that when one party performs its obligation under the contract (by delivering goods for example), that action will be seen as acceptance by conduct of the offer in the last form.
However, a more recent case shows that the “last shot” will not always succeed as illustrated in Butler Machine Tool Ltd v Ex-Cell-O Corp (1979).
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