GRAFTON MERCHANTING GB LTD TRADING AS BUILDBASE v. SUNDIAL PROPERTIES (GILMERTON) LIMITED [2013] ScotSC 28 (30 January 2013)

GRAFTON MERCHANTING GB LTD TRADING AS BUILDBASE v. SUNDIAL PROPERTIES (GILMERTON) LIMITED [2013] ScotSC 28 (30 January 2013)

The court held that the pursuer's terms and conditions did not apply to the exclusion of the defender's. The contract was subject to the traditional 'battle of the forms' analysis, and the pursuer could not, by its own condition, prevent the defender from making a counter-offer. There was a factual dispute as to which terms were incorporated and whether the contract was subsequently varied by agreement or conduct. Proof was required on these matters.

Citation
[2013] ScotSC 28
Parties
Pursuer: Grafton Merchanting GB Ltd t/a Buildbase; Defender: Sundial Properties (Gilmerton) Limited
Jurisdiction
Scotland
Judgment Date
30 January 2013
Procedural Posture
Commercial Contract Dispute / Interlocutory Judgment on Pleadings; Proof Before Answer Allowed
Outcome
Proof before answer allowed; no exclusion of defender's averments; expenses reserved.
Legal Topics
Battle of the Forms, Contract Variation, Terms and Conditions, Offer and Acceptance, Payment and Delivery Obligations
Contract Law Commercial Law Battle of the Forms Contract Variation Terms and Conditions Offer and Acceptance Payment and Delivery Obligations

Case Brief

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Parties

Grafton Merchanting GB Ltd t/a Buildbase

Pursuer

Sundial Properties (Gilmerton) Limited

Defender

Procedural Posture

Commercial Contract Dispute / Interlocutory Judgment on Pleadings; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether the pursuer's or defender's terms and conditions apply exclusively or concurrently to the contract ('battle of the forms')
  2. 2 Whether the contract was varied by subsequent agreement or conduct
  3. 3 Whether payment is due before or after delivery under the applicable terms

Ratio Decidendi

The court held that the pursuer's terms and conditions did not apply to the exclusion of the defender's. The contract was subject to the traditional 'battle of the forms' analysis, and the pursuer could not, by its own condition, prevent the defender from making a counter-offer. There was a factual dispute as to which terms were incorporated and whether the contract was subsequently varied by agreement or conduct. Proof was required on these matters.

Court Disposition

Proof before answer allowed; no exclusion of defender's averments; expenses reserved.

Orders

  • Proof before answer appointed on parties' averments;
  • Question of expenses of the debate reserved as agreed between parties.