Dana UK AXLE Ltd v Freudenberg FST GmbH

[2021] EWHC 1751 (TCC)

In issue 252, we discussed this case and, in particular, the Judge’s views on the approach to expert evidence, one of the other issues related to the formation of the Contract. It was common ground that, in deciding whether the parties had reached an agreement, the Judge should apply an objective test. In particular, they should look at the communications passing between the parties to see whether, to all outward appearances, there had been agreement in the same terms as to the same subject matter. 

Had an offer been made with the apparent intention that it should be binding (notwithstanding that the offer may have been described as something else) and whether there had been a final and unqualified expression of assent to the terms of the offer, including by conduct. However, where there was acceptance by conduct, it must be objectively clear that the act of acceptance was done with the intention of accepting the offer.

Terms and conditions in standard form contracts must be brought to the attention of the party being bound before, or at the point, the contract is made. Here, there was a ‘’battle of the forms” with each party alleging that the other contracted on its standard terms and conditions.

Clause 1 of the FST Terms provided that:

“These General Terms and Conditions apply to all our offers, contracts, deliveries and other services … including all future business relations, even if not explicitly and separately stipulated. The Terms and Conditions shall be considered as accepted at order placement or receipt of goods at the latest. Conditions to the contrary set by our Customer shall not be accepted. These may only be applicable with our express written consent.”

This is the type of clause which can displace the usual battle of forms analysis. However, the FST Terms were not attached to the relevant FST Quotation and there was no indication as to where they could be found and no evidence that Dana had ever asked for them or seen them. 

Taking an objective view, the Judge said that a contract was formed between the parties on the 2003 Dana Terms. The application of the last shot doctrine resulted in Dana’s terms being incorporated. The relevant purchase order represented a formal offer to purchase (in the first instance) 288,482 seals at a unit price of Euros 1.4335 on the 2003 Dana Terms, which was accepted by FST’s conduct when it delivered the seals requested in the order. 

Further, it was accompanied by a hard copy of the 2003 Dana Terms printed on the reverse of each page. There was sufficient information to amount to an offer to contract. The total order value for each part was identified as well as a unit price, from which the initial order volumes agreed between the parties could be calculated. In addition, it identified the mechanism by which volumes and delivery dates would be communicated at a later stage.

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