Battle of the Forms: §2-207
Terms in this set (4)
Determining whether UCC or Common law
1) Sale of goods?
2) Between merchants?
UCC §2-207: Sub (1)
Acceptance = "definite & seasonable expression" sent within reasonable time;
Can have additional or different terms UNLESS acceptance expressly made conditional on assent to add'l/diff terms
--> if no add'l/diff terms, CONTRACT
--> if add'l/diff terms, then go to (2)
--> if add'l/diff terms AND conditional, then go to (3)
UCC §2-207: Sub (2)
(2) (If not merchants) Additional terms = proposals
ONLY part of contract if Offeror AFFFIRMATIVELY accepts them.
--> If between merchants, terms become part of contract UNLESS
(a) Initial Offer expressly limits acceptance to terms of offer; or
(b) They materially alter it; or
(c) Notification of objection to them given prior OR after acceptance response is sent
—> If YES to any of the above, original terms govern; new terms drop out, CONTRACT= This is the situation referred to as the "First Shot" situation.
---> If NO to all, terms become part of CONTRACT
---> If terms are Different, can treat them as if they are
- Comment 3- They become like Additional
- Comment 6- "Knock-out" rule: gaps with UCC defaults, CONTRACT
UCC §2-207: Sub (3)
(3) Both parties' conduct acting as if there was a contract, even if the writings don't otherwise establish one --> CONTRACT
--> Terms = everything parties agreed on (which might include terms from the opposing party. This is what distinguishes it from the "Knockout rule") + UCC defaults as gap-fillers, if needed
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