Tuesday, November 4, 2008

Battle of the Forms

Over at the ContractsProf Blog Jeremy Telman posted his Battle of the Forms Limerick:

To rhyme on the battle of forms
Would intrude upon poetic norms.
2-207 in verse
Might even be worse
Than an ode to the new tax reforms.

Battle of the forms cases are still routine fare, with the recent case of NIC Holding Corp. v. Lukoil Pan Americas LLC, 2008 U.S. Dist. Lexis 74034 (S.D.N.Y. 2008) adopting a textbook application of the rules. In the NIC case, NIC, a petroleum trader, sought damages for Lukoil's failure to deliver gasoline at the appointed time. Although the court denied NIC's motion for summary judgment, the Court did find that a warranty requiring the delivery vessel to have an international carrier bond was part of the contract between the parties because NIC's form reply to Lukoil's form contract contained the warranty provision which Lukoil did not "object to" and did not "materially alter" the contract as was not a "surprise" or "hardship." This is the type of classic fact-pattern which makes me think of examinations!

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