Revisiting the Battle of the Forms: A Case Study Approach to Legal Strategy Development

The area of contract law described as the battle of the forms is a perfect example of an area of law where the legal rules and their application are complex, contradictory, and/or inconsistently applied. Indeed, the battle of the forms problem has been recognized as among the most “difficult problems for contract doctrine to resolve” and in some jurisdictions, has been described as “chaos” thus increasing opportunities for the strategic manipulation of the law. The classic battle of the forms typically arises when a buyer and seller exchange conflicting standard forms and commence performance of the contract. The parties appear to have a contract, “but on what terms?” Legal solutions to the battle of the forms dilemma have ranged from the development of the common law doctrine known as the “performance doctrine”, which simplifies the matter by downplaying rigorous application of contract law fundamentals like intention and consensus ad idem, to solutions that lie in restitution, to attempts to legislate it away. This is what makes the battle of the forms dilemma particularly interesting from a legal strategy point of view. There exists both tension and conflict in the law as to how a battle of the forms is to be, or should be, addressed. Such tension and conflict provide fodder for the development of opportunistic corporate behaviour. Such behaviour means that the management of the company is driven by exploitation of the law. It also has the potential to signal to the court and its officers that legal strategies could be at play. While the practical relevance of legal strategies to the strategies employed by judges in resolving disputes is a question for another day, express acknowledgment of the potential for legal strategy in the first instance is arguably a step towards the development of policies capable of directly addressing corporate legal strategies and beginning the process of distinguishing acceptable strategies from the unacceptable. This paper does not delve into the ethical considerations of legal strategy or attempt to delineate the line between the acceptable and the offensive strategy. This paper simply advances a strategic analysis of recent Canadian battle of the forms case-law, as a discrete area of law, in order to uncover the strengths and weaknesses of various strategic approaches which might be used to achieve desired outcomes. One benefit of expressly undertaking this kind of explicit reverse causality examination is that it can assist regulators and legislators in identifying where the potential to manipulate a specific legal rule into supporting an unintended or undesirable corporate activity exists. It may also, over time, assist in the development of the best possible balance or “policy mix” for regulators that might “best limit the opportunities for companies to strategically manipulate rules.”

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