Navigating the Battle of the Forms: Key Terms in your Contract

Battle of the Forms under the Uniform Commercial Code

Many businesses use purchase orders or boilerplate forms to buy and sell goods, which can lead to a “battle of the forms” if the parties have different terms and conditions. Article 2 of the Uniform Commercial Code (UCC) governs these disputes if the purchase order covers buying or selling goods. Wisconsin Statute 402.105(1)(c) defines goods as all things movable at the time of identification to the contract for sale, excluding money, investment securities, and things in action. The term also includes unborn young of animals, growing crops, and other identified things attached to real estate.

Common Law and the UCC:  Mirror Image Rule vs. Battle of the Forms

The UCC aimed to create a uniform legal framework to facilitate smoother and more predictable business operations, reduce legal disputes, and promote economic efficiency. For contracts involving real estate or services, common law still applies. Common law requires identical terms for a valid contract. If terms differ, it is considered a counter-offer. However, for the sale of goods, the UCC applies. The UCC does not require a formal contract; a purchase order can create a contract. The “Battle of the Forms” arises when parties have different terms in the purchase order or if different terms are provided when the goods are accepted by the purchaser.

Contracts Between Merchants

Wisconsin law defines a merchant as a person who deals in goods of the kind involved in the transaction or who, by their occupation, holds themselves out as having knowledge or skill peculiar to the practices or goods involved. Merchants are familiar with the goods they deal with. Added terms become part of the contract unless they impose a hardship, shift risk, or surprise the other party. Material alterations include changes in price, governing laws, attorney fees, remedies for breach, warranties, or quantity.

Contract Conflicts Between Merchants

Merchants are familiar with the goods they deal with. As such, the UCC assumes a contract is formed if there is a definite acceptance, even if terms differ. Added terms become part of the contract unless they impose a hardship, shift risk, or surprise the other party through a material alteration. Material alterations include changes in price, governing laws, attorney fees, remedies for breach, warranties, or quantity.

Contract Conflicts Involving One or No Merchants

If one or both parties are not merchants, added terms are proposals and not part of the final agreement unless agreed to by the offeror. If the acceptance alters terms, the offer’s terms apply. If acceptance is conditional on the offeror’s terms, any changes are considered a rejection and counter-offer.

What Terms Are in My Contract?

Determining the terms of an agreement involving goods can be complex. If you have made an agreement for the sale of goods or accepted goods and are unsure about the terms, contact an experienced attorney. The business litigation attorneys at Halling & Cayo, S.C. have decades of experience helping businesses and customers resolve these issues. Contact one of our experienced attorneys today for a free consultation.