Problem Question-Please give me some imput
Buyer Ltd (“Buyer”) is a manufacturer and wholesaler of computer equipment. The
company telephoned Seller Ltd (“Seller”), which orally agreed to supply 5,000
computer speaker systems at a price of £150,000. Seller then sent a document
headed “Sales Contract” to Buyer, setting out Seller’s terms and conditions. The
“Sales Contract” contained a tear-off “acknowledgement” section which Buyer was
asked to sign and return to Seller.
One week later, Buyer signed and returned the acknowledgement to Seller, together
with a letter which stated that the contract was to be governed by Buyer’s terms and
conditions, a copy of which was enclosed.
The speaker systems were delivered and Buyer paid the £150,000. The company has
now received a demand from Seller for £3,000 “transport costs”, and has been
referred to one of Seller’s terms which provides, in small print: “If the purchaser
does not arrange for the collection of the goods purchased, the seller will arrange for
them to be transported subject to reimbursement by the purchaser who is fully liable
for the cost.”
Buyer is refusing to pay, and has referred Seller to its own terms and conditions
which include the statement “Any price which Exe Ltd agrees to pay shall be
deemed to include all delivery costs.”
Advise Seller.
Hi Sweetvan,
Your question is concern "battle of the forms" situations which arises when both parties, a buyer and seller of goods exchange inconsistent standard forms during
contract negotiations and reach an agreement without deciding whose standard
forms should prevail.
The leading authority for this situtation is the case of Butler Machine Tool and Ex-cell O Corp. In this situtation , it required the court to determine which set of terms prevail. This was
generally held to be the party who had the last say in the negotiation.
In Butler Machine Tool ,
acknowledgement by signing the slip of the buyer’s terms was the final
acceptance so that there was no price escalation clause.
its terms by saying they were filling in the order in accordance with
their revised quotations of May 23”, despite signing the buyer’s
acknowledgment slip was unsuccessful and was treated by the court as
merely a method of identifying the machine.
v Wrench a counter-offer acts to kill any previous offer. Therefore, When a counter-offer is
involved the last counter-offer dictates the terms of the contract.
decision held that the contract was made on the Buyer’s terms, without a price
variation clause. Therefore the Seller
had no right to claim the extra manufacturing fee and the appeal was allowed.
Therefore, in your question, prima facie, Buyer has the "last say". However , upon lcloser examination, the Buyer ltd signed and returned the acknowledgement to Seller ltd that it will be on Seller's terms. Although Buyer attached together with a letter which stated that the contract was to be governed by Buyer’s terms, but Seller did not acknowledge it ie: by signing it. In my opinion, therefore the Seller's term will prevail and therefore Buyer will have to pay for the shipping cost .
What do other students think?
cheers
Madelyn G
I think your answer is ace - are you an a-star pupil? :-) Maybe you could help me also? I've posted a seperate blog...
Hi James,
I'll try my best. :) Are you sitting for the LLB intermediate exam?
regards
madelyn
Hi Madelyn
I currently have two resits, contract and tort. This is my first year LLB. It's been 20 years since I sat an exam so its become a bit of a shock :) I only missed out by 1 and 7%, hey ho. Feel free to add me to msn if you like? privatemale29@hotmail.com
Cheers
James
I have sent you a reply on one of your posting on misrepresentation.Hope it helps. Sorry i dont msn. Dont have the time. It's nice meeting you.
p/s; i am not too familiar with the other topics that u posted. so only able to reply on misrepresentation.
thats great thanks Madelyn, I'll check it out...no worries about the MSN, i'm having to ignore it myself till after resits :( thanks again :)
thats great thanks Madelyn, I'll check it out...no worries about the MSN, i'm having to ignore it myself till after resits :( thanks again :)