The Battle of the Forms! - Takdata v Amphenol - You be the Judge (Part A)

by Peter Jones (Paterson MacDougall LLP)

In a recent English case, the claimant, Takdata, issued a purchase order to the Defendant Amphenol for electrical connectors that Takdata would incorporate into electrical harnesses for Rolls Royce aero engines. Takdata's form of purchase order stated that the order was on Takdata's terms and conditions printed on the reverse side. Upon receipt of the purchase order, Amphenol delivered an acknowledgement to Takdata that included its own terms and conditions on the reverse side. Amphenol's acknowledgement also stated that its terms and conditions were to apply. The issue was whether the contract was concluded on Takdata's or Amphenol's terms. The trial judge decided for Takdata.

The trial judge was influenced by background circumstances. First, there was a long-standing relationship between the parties that had continued for nearly 20 years. Secondly, unknown to Takdata, Goodrich, another party higher up the Rolls Royce supply chain, had a direct contract with Amphenol that required Amphenol to purchase connectors from Takdata. This supply chain contract contained terms and conditions that were similar to but not identical with Takdata's. Thirdly, the trial judge noted that quality control and delivery times were central to the supply chain environment, and essential to a good commercial relationship. Fourthly, Amphenol was prepared to and did sign a certificate of conformance in respect to the connectors as Takdata's conditions required them to do. Lastly, once problems had arisen, Amphenol had engaged in a long correspondence with Takdata, in which its terms and conditions were not mentioned. The first time Amphenol claimed that the contract was on its own terms and conditions was in its statement of defence delivered by its solicitors.

These circumstances confirmed to the trial judge that there was no common intention that Amphenol's conditions would displace Takdata's and apply to the contract. So Amphenol would be liable to Takdata for provable damages, which could be significant.

Amphenol appealed. How should the Court of Appeal decide the appeal? Vote by clicking the appropriate link below and placing “VOTE” in the subject line:

If you agree with the trial judge that Amphenol is liable, click here.

If you think the trial judge is wrong, and the Court of Appeal should reverse his judgement, click here.

In either case please let us have your reasons, which will be published along with the results in the New Year.

December 16, 2009