Battle of the Forms: 2-207 Additional Terms in
Acceptance or Confirmation
2-207(1) Is there a definite and seasonable expression of acceptance
OR
a written confirmation [of past acceptance] is sent within a reasonable time
??
Normally no K under
2-207(1)...
No
Yes
But...
Does
acceptance/confirmation
"state additional or
different terms from
those offered or agreed
upon?" 2-207(1)
Acceptance/written confirmation from
original offeree made "expressly
conditional on assent to additional or
different terms" (this must be absoluetly
clear)?
2-207(1)
No.
Does "conduct of parties
recognize the existence
of a k"?
2-207(3)
Yes. Then it
wasn't really
acceptance.
K exists on terms of
original offeror's offer
under 2-207(1)
No.
Yes
This was instead a
counter-offer made by
the original offeree.
No K under 2-207(3)
called the Knockout Rule since any
additional terms are "knocked out" of
the K and are replaced with UCC
gapfillers
No.
Did the original offeror
expressly and
unambiguously assent to
the additional or different
terms in this
counter-offer?
K Exists under 2-207(3) consisting of
only agreed upon terms+ gapfillers
No
K formed on original
offeree's terms.
Different/conflicting
terms
Are tthere different terms
or just additional terms?
Additional terms are NOT part of newly formed
K.
UCC First Shot Rule:
Most commentators
agree that these
different/conflicting terms
drop out. Minority
approach is to treat as
equivalent to additional
terms.
No
K exists under 2-207(1)
on agreed terms.
What do we do with
additional terms?
They are treated as proposals to add to/modify the K or to
form an additional K.
2-207(2)
Between merchants?
2-207(2)
2-104(3)
both parties "chargeable with
knowledge/skill of merchants?
Additional terms are included in the new K
UNLESS
2-207(2)(a)
the original offeror made the original offer
expressly limited so that it could only be
accepted with the terms of that original offer.
2-207(2)
Note: Still a K formed, just additional terms
may or may not be included depending on if
these exceptions trigger or not.
Note: This is now, therefore, common in
standard form contract proposal forms.
2-207(2)(b)
the additional terms materially alter it.
Material==results in surprise/hardship if
incorporated without express awareness by
the other party, cmt 4
2-207(2)(c)
notification of objection to these additional terms
has already been given
or
is given within a reasonable time after notice of
them is received