Document Type

Article

Publication Date

1997

Abstract

After the parties agree to a sale, the buyer sends a purchase order with one set of boilerplate terms on the reverse side; the seller responds with an acknowledgment and invoice with another set of boilerplate terms. Do they have a contract? If so, on what terms? This so-called "battle of the forms" has given rise to a great outpouring of scholarship1 and a legislative solution widely perceived as inartfully drafted and generally unsatisfactory.2In particular, the Code solution has been criticized because it attempted to solve both the formation and interpretation problems with one rule. The Uniform Commercial Code is now undergoing revision,3 and the most recent drafts have disentangled the two issues.4 The revised Code has undergone at least two significant revisions between the July 1996 draft and the end of 1996. The target date for presenting the Code to state legislatures is fall 1998,5 so it is not unlikely that the draft will evolve yet again before final passage. While the revisers' separation of the two issues is laudable, their execution leaves something to be desired. They fail to address what I perceive to be the primary problem: when designing their forms, the parties have insufficient incentive to take their counterparties' concerns into account.

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