Scenario: PO issued without a prior framework agreement
Objective: Secure your standalone purchase orders and master the rules of the "battle of the forms".
Sources and case law
- Art. 1119 C. civ. - GTP and GTS: general terms invoked by a party only take effect if brought to the other party's attention and accepted
- Cass. com., 26 Sept. 2018, No. 17-10.173 - GTP not enforceable if not brought to attention before the order
- Cass. com., 9 Jan. 2019, No. 17-26.907 - "Last shot" theory in the battle of the forms
This is the most common situation for one-off or low-value purchases. It is also the most legally risky, as the contractual framework is fragile.
🏢 Buyer issues a PO
The PO is often accompanied by the buyer's General Terms of Purchase (GTP), referencing the supplier's GTS for the rest
⚔️
🔧 Supplier responds / delivers
The supplier may respond with its own GTS on its order acknowledgement or invoice
⚔️ The "Battle of the Forms"
When the buyer's GTP and the supplier's GTS are incompatible, which regime applies?
1
GTP communicated before the offer prevail if the supplier did not expressly and timely contest them. The buyer must provide them to the supplier before or during the tender.
2
The last document sent prevails ("last shot" theory) if the other party performs without reservation. If the supplier delivers after having sent its GTS, and the buyer accepts without reservation, the supplier's GTS may apply.
3
In the absence of a clear precedence clause: only the matching clauses apply. Conflicting clauses cancel each other out, and default law fills the gaps.
✅ Best practices for POs without a framework agreement:
- Always attach your GTP to the PO and require express acceptance
- Include a clause: "This PO is governed exclusively by the Buyer's GTP"
- Require an order acknowledgement mentioning acceptance of your GTP
- Reject "order acknowledgements" containing conflicting GTS that were not accepted