The Sound of One Form Battling: Comments on Daniel Keating’s ‘Exploring the Battle of the Forms in Action’

Daniel Keating has provided a thoughtful and useful study of the way that businesses form contracts. In particular, he has given us a good deal of data concerning the problem known as the “battle of the forms.” Commercial lawyers have, of course, been wrangling over this problem for decades, so it is no small accomplishment to be able to offer a useful contribution. In Part I below, I describe more precisely just what Keating’s data does and does not illuminate. Parts II and III then focus on a particular contracting practice that Keating has identified: the practice of getting both parties to sign a “master agreement” in advance of a series of deals. These master agreements let the parties agree in advance to the terms that will govern their subsequent deals, without leaving those terms to depend on the invoices and other forms that will subsequently be exchanged. This encapsulation of the parties’ agreement in a single document could be said to eliminate the battle entirely, for it certainly solves many of the technical problems that plague commercial lawyers whenever the parties’ documents fail to match. I argue, though, that these master agreements may not solve all of the objections that some courts and some scholars have raised in “battle of the forms” cases. While I believe these objections are misguided, they may nevertheless be influential, so there is at least a question about how often these master agreements will be upheld by courts.