Exploring the Battle of the Forms in Action

Authors

Daniel Keating, Washington University School of Law

Abstract

Like many commercial law professors, I have long been fascinated with the workings of the Uniform Commercial Code's section 2-207, the "battle of the forms" provision. There are two features of that section, one internal and one external, that make it such an intriguing statute to ponder. The internal source of fascination with section 2-207 is that it provides a classic model for teaching students about the intricacies of statutory construction. There is probably no other provision within U.C.C. Article 2 that provides more confusion to law students and more challenge to the instructor than does section 2-207. There is a little bit of everything in there: subsections that must be reconciled, Official Comments that must be reckoned with, and even an apparent drafter's error or two that turns what would already be a difficult statute into a nearly incomprehensible one. As good a device as section 2-207 is for introducing students to difficult statutory construction problems, I suspect that the more intriguing aspect of the provision for law professors is the .strange kind of contract that the section sanctions. In a sense, the classic battle-ofthe- forms sale turns contract law on its head. This is a deal in which the two parties recklessly, if not knowingly, consummate a sale of goods without having settled on all of the terms. And while one could argue that every contract is incomplete at some level, what distinguishes the battle of the forms case is that these contracts are most often incomplete at very fundamental levels. Left unsettled are issues like warranties, remedies, and other matters that no one could pretend were beyond the contemplation of the parties at the time of formation. A second distinction between the battle-of-the-forms situation and the typical incomplete contract is that with the battle of the forms, each side has specifically proposed something for the open term so that we know exactly what both parties wanted for that term.

Recommended Citation

Daniel Keating, Exploring the Battle of the Forms in Action, 98 Mich. L. Rev. 2678 (2000).
Available at: https://repository.law.umich.edu/mlr/vol98/iss8/13