Vems villkor vinner? : Kolliderande standardavtal i förhållande till avtalsrättsliga utvecklingslinjer

Sammanfattning: The basis of any contract is the agreement of two or more parties. In traditional Swedish and English contract law theory, a contract is formed through the reciprocal exchange of an offer and a corresponding acceptance. Together, these declarations of will represent the common intent of the parties, which binds them to their respective contractual obligations and determines the contents of the contract. In the contemporary commercial sector, the use of standard forms (i.e., sets of terms that have not been individually negotiated) has become more prevalent. This has led to the rise of a particular legal issue, called the “battle of forms”: a situation where both parties refer to their own, conflicting, standard forms during the formation of contract, where after they proceed in fulfilling their contractual obligations. Consequently, the exchanged declarations of will lack conformity in these cases, and there is no discernible common will of the parties. In order to conclude that a contract has been formed, and to decide its contents, this conflict needs to be resolved. The traditional approach to resolving the issue of battle of forms in English law is to regard the last referenced standard terms in the contractual negotiations as an offer (or counter-offer), and the other party’s conduct as an acceptance. This approach largely corresponds with how the issue likely would be resolved according to traditional Swedish contract law principles. However, in the legal scientific environments of both Sweden and England, ideas and concepts of a modern contract law has developed. Included therein is the idea of taking a more flexible stance with regard to the formation of contract. When viewing the contractual relationship holistically, and partly liberated from the offer-acceptance approach, the battle of forms can be resolved by letting the court construe the different sets of terms together, and re-place conflicting terms with suitable substitutes by implication. These modern concepts have partly manifested in recent English precedence regarding the battle of forms. Considering that the patterns of development with respect to the modern law of contract are similar in Swedish and English law, there is reason to believe that a similar “new” approach to the battle of forms might be adopted by Swedish courts as well.