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Battle of the Forms

by on October 4, 2011

So, last week in Contracts class, we finally reached the epic discussion of the Battle of the Forms. Legend tells that this is a rite of passage for students of contract law, full of pitfall and peril. There’s the Last Shot Rule, the Knockout Rule, dueling provisions…it’s epic. Epic, I tell you. Now, you’re probably wondering what this dramatic discussion is all about. Well, here it is.

A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. (U.C.C. 2-207, subsection 1)

That’s, partly, what the Battle of the  Forms actually is. Now, this is what it should be….

Lightning slashed across the sky, followed by a mighty crash of thunder. The storm was nearly upon him, but the mighty Hercules cared nought. “Brown Machine!” he roared, his voice resounding across the rocky valley. “I am the mighty Hercules! And I demand…a TRIM PRESS! I wish to make Cool Whip, for my nigh-immortal form requires sustenance!”

The cyborg stared back at him, a stare almost unnatural in its cold. “We are Brown Machine,” it spoke in precisely modulated tones. “A trim press, like resistance, is futile. However, as w do have a trim press, we could sell it to you. Will you agree to our terms, one of which is an indemnity clause found on paragraph eight of our sixteen paragraph price quotation?” 

“Pah!” Hercules bellowed, with a mighty spit. “I care not for your terms! I have the Purchase Order of Supreme Heavenly Might! I fear no clauses!” 

And we,” the robot said, “have the Acknowledgment of Righteously Epic Justice. We will surely prevail, and our clause shall be part of our contract. It is madness to think otherwise.”

Madness?” Hercules replied, “this…is….Contraaaaaacts!” With that he unleashed the Purchase Order of Supreme Heavenly Might! The shining paper flashed like lightning towards the robot, but its arm moved with a whir of widgets as it raised the Acknowledgment of Righteously Epic Justice! A tremendous crash resounded throughout the valley!

When the smoke cleared, the robot lay creaking and spitting sparks on the ground. Its acknowledgment form had failed. Hercules leaned in close to hear its last words. “Should…have…made…acceptance….conditional…”

Hercules raised his mighty fist and smashed the Brown Machine’s robot brain into tiny fragments of metal. “Winning!” he roared to the heavens. The Battle of the Forms had ended. Victory was his!

That’s how it played out in my imagination. The actual battle involved a lot less lightning and thunder and a lot more nuances and subsections. C’est la vie.


  1. Well you sure made the class sound much more exciting to me, and I think I even understood it a teeny bit….

    Enjoyable read!

  2. Well done! You really livened things up!

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