Whose general terms apply when both sides use their own?

How the battle of forms arises

The pattern is familiar. Your quotation refers to your general terms, the customer's purchase order refers to its purchasing conditions, nobody objects, and both sides start performing. Each assumes its own terms govern: the seller because it quoted first, the buyer because it "ordered last". Both are usually wrong, and nobody notices until a dispute over liability, warranty or jurisdiction makes the question worth money.

The core problem is that general terms only bind if they were actually made part of the contract. A contract needs matching declarations of intent (Art. 1 CO), and when each party has referred exclusively to its own set and rejected the other's, there is agreement on the deal itself, on the goods, the price and the delivery, but no agreement on the competing boilerplate.

What actually governs the deal

Whether general terms became part of the contract at all, and what they mean once they did, is the subject of BGE 148 III 57. On top of that sits the unusualness rule, which keeps surprising clauses in a set of standard terms out of the contract even where the terms as a whole were validly incorporated (BGE 135 III 1).

Swiss doctrine and practice lean towards a knock-out approach at framework level. Where the two sets of terms contradict each other, neither conflicting clause applies, and the gap is filled by the default rules of the Code of Obligations. Clauses on which both sets happen to agree can stand; the contested ones fall away. What is left is read against the parties' real common intention (Art. 18 CO) rather than against whichever document arrived last. The "last shot" idea is not a rule you should rely on.

The practical consequence surprises many businesses. The liability cap, the extended retention of title or the exclusive jurisdiction clause you assumed protected you may simply not be part of the contract. On those points you are trading on statutory default law, which was not drafted with your risk profile in mind. Terms that are unusual or one-sided face a further hurdle: general conditions that create a significant and unjustified imbalance can be attacked as unfair (Art. 8 UCA).

Drafting and process fixes

The battle of forms is best won by not fighting it. The clean solution is a signed frame: a master agreement or signed order confirmation stating expressly which terms govern and that the other side's terms are excluded. Signed by the counterparty, not merely sent to it.

Where a signed document is not realistic, discipline still helps:

• Make the applicability of your terms an express part of the offer, and attach the terms rather than merely referencing a URL.
• If the counterparty's order comes back referencing its own conditions, object in writing and resolve the conflict before performing. Starting performance is what lets the ambiguity harden into a dispute.
• Identify the handful of clauses you genuinely cannot trade on, typically liability, warranty, jurisdiction and payment security, and move them into the individually negotiated part of the deal, where they no longer depend on whose boilerplate won.
• Train sales and procurement to spot competing terms. The battle of forms is usually lost at order-processing speed, not in legal review.

Which clauses survive a concrete exchange of forms depends on the documents and the sequence in your file. If a real dispute is brewing, have that file reviewed before taking a position.