The BUSKLAW Newsletter

Please indulge me. Pretend that these flies are your customers and suppliers. Further pretend that this flypaper is your standard contract that you have posted on your website, no doubt to save time - and trees.  Your standard contract is essential to protecting your company, right? It probably contains an indemnity, warranty or warranty disclaimer, a liability limitation, a remote damages exclusion, and a governing law provision. But what it doesn't contain is the business terms of your deals. Those are neatly packaged in a one-page document that you can quickly create and email to your suppliers (as a PO) or to your customers (as a sales acknowledgment). Ah, you are amazed by this beautiful simplicity of managing your customers and suppliers! You are enthralled by this well-oiled business process!  Not so fast. Are the flies really stuck to the flypaper? Are you certain that your standard contract is legally binding on your customers and suppliers?  Here's the ...

In my October post , we talked about the peril of a buyer ignoring the seller's "terms and conditions" in a sale of defective blueberries from Michigan growers. I suggested that the buyer could have prepared a "sales acknowledgment" to send to the seller along with the signed offer acceptance. This approach could have negated the seller's terms and conditions that contained numerous risk-shifting provisions skewing the deal in seller's favor. These provisions included restrictions that limited buyer's remedies if seller breached (which happened), mandatory jurisdiction and venue in seller's home town, and the requirement that the losing party in any court dispute pay the winning party's actual attorney fees, a provision that resulted in the buyer's payment of big bucks to the seller's lawyers.    Lawyers have an ominous name for this scenario: the "battle of the forms."  Generally, this battle occurs when contracting pa...