Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England) Ltd [1977] EWCA Civ 9[1] is a leading English contract law case.

It concerns the problem found among some large businesses, with each side attempting to get their preferred standard form agreements to be the basis for a contract.

But Lord Denning MR's judgment took the approach that one should look for material agreement and the court should have the power to ignore irreconcilable terms.

By that time costs had increased so much that the sellers claimed an additional sum of £2,892 as due to them under the price variation clause.

Delivery 10 months (subject to confirmation at time of ordering) other terms and conditions are on the reverse of this quotation.

during the period of manufacture, we regret that we have no alternative but to make it a condition of acceptance of order that goods will be charged at prices ruling upon date of delivery."

We accept your order on the terms and conditions stated thereon — and undertake to deliver by — Date — signed."

On June 5, 1969, the sellers wrote this letter to the buyers: "We have pleasure in acknowledging receipt of your official order dated May 27 covering the supply of one Butler Double Column Plane-Miller.

They enclosed the acknowledgment form duly filled in with the delivery date March/April 1970 and signed by the Butler Machine Tool Co. No doubt a contract was then concluded.

The sellers rely on their general conditions and on their last letter which said "in accordance with our revised quotation of May 23" (which had on the back the price variation clause).

If those documents are analysed in our traditional method, the result would seem to me to be this: the quotation of May 23, 1969, was an offer by the sellers to the buyers containing the terms and conditions on the back.

The machine was ready about September 1970 but by that time the buyers' production schedule had to be re-arranged as they could not accept delivery until November 1970.

They sought to charge the buyers an increase due to the rise in costs between May 27, 1969 (when the order was given), and April 1, 1970 (when the machine ought to have been delivered).

He said that in the quotation of May 23, 1969, "one finds the price variation clause appearing under a most emphatic heading stating that it is a term or condition that is to prevail."

Such was British Road Services Ltd. v. Arthur V. Crutchley & Co. Ltd. [1968] 1 Lloyd's Rep. 271, 281–282, per Lord Pearson; and the illustration given by Professor Guest in Anson's Law of Contract, 24th ed., pp.

The modern commercial practice of making quotations and placing orders with conditions attached, usually in small print, is indeed likely, as in this case to produce a battle of forms.

The view taken by Thesiger J. was that the battle should extend over a wide area and the court should do its best to look into the minds of the parties and make certain assumptions.

It is a battle more on classical 18th century lines when convention decided who had the right to open fire first rather than in accordance with the modern concept of attrition.

By letter dated June 5, 1969, the sales office manager at the plaintiffs' Halifax factory completed that tear-off slip and sent it back to the buyers.

It is true, as Mr. Scott has reminded us, that the return of that printed slip was accompanied by a letter which had this sentence in it: "This is being entered in accordance with our revised quotation of May 23 for delivery in 10/11 months."

As I pointed out in the course of argument to Mr. Scott, if the letter of June 5 which accompanied the form acknowledging the terms which the buyers had specified had amounted to a counter-offer, then in my judgment the parties never were ad idem.

We have heard, nevertheless, an interesting discussion on the question of the extent to which the terms of article 7 of that Schedule are mirrored in the common law of England today.

No difficulty arises about paragraph 1 of the article, which provides: "An acceptance containing additions, limitations or other modifications shall be a rejection of the offer and shall constitute a counter-offer."

There was a condition purporting to limit the sellers' liability for damage due to defective workmanship or materials in the goods sold.

Mr. Scott has struggled manfully to say that the contract concluded on those terms and conditions was in some way overruled or varied by the references in the two letters dated June 4 and 5 to the quotation of May 23, 1969.

I agree with Lord Denning MR and Lawton LJ that that language has no other effect than to identify the machinery and to refer to the prices quoted on May 23.

But on any view, at its highest, the language is equivocal and wholly ineffective to override the plain and unequivocal terms of the printed acknowledgment of order which was enclosed with the letter of June 5.

But I do not consider that question further because I am content to rest upon the view that there is nothing in the letter of June 5 which overrides the plain effect of the acceptance of the order on the terms and conditions stated thereon.

I too would allow the appeal and enter the judgment for the defendants.As a result of the majority ruling in the Butler Machine Tool case, English law continues to approach the issue of the battle of forms from the viewpoint of analysing the communication between the parties to see if it can be discerned into an offer and acceptance.

An example of a different theoretical approach to resolving the "battle of forms" issue can be found in Article 19 of the Vienna Convention for the International Sale of Goods, which provides: Please note: The United Nations Convention on Contracts for the International Sales of Goods has been ratified by 78 states.