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The purpose of this article is to report on a modest study of how the battle of the forms provision affects commercial behavior. In conducting these 25 recorded telephone interviews with representatives of companies that buy and sell goods, the purposes were threefold: first, to test the validity of several factual assumptions that underlie most of the scholarship in this area; second, to try to get a better sense of what reforms, if any, ought to be made to 2-207; and third, to determine what effects, if any, the increasing use of technology in sales contract formation has had on the battle of the forms. The interviews suggested a number of results that were surprising, at least as measured against the conventional wisdom contained in most law review articles on this subject. First, and perhaps most fundamentally, the classic battle of the forms situation seems to be, for a variety of reasons, much less prevalent than one would guess from reading most academic literature in this area. Second, without any legal incentives to do so, some companies have shifted to drafting less one-sided forms, at least as to issues that are not seen as critical to their side's interests. Third, even where the battle of the forms situation exists, a number of parties will actually read the terms on the other side's forms in certain fairly well-defined instances. Finally, technological advances in contract formation appear to be having less impact in reducing the significance of 2-207 than are certain market shifts that have led to the formation of various mega-retailers who can pretty much set the rules for any of their purchase orders. In terms of reform ideas, these interviews suggest that probably all that is needed is a fairly modest simplification of 2-207 along the lines of what the Article 2 revision process seems likely to yield anyway at this point.

Exploring the Battle of the Forms in Action