Battle of the Forms Flashcards
2-207
Battle of the Forms
2-207
(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon unless acceptance is expressly made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants, such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for salealthough the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.
2-206 Offer and Acceptance in Formation of K
(1) Unless otherwise unambiguously indicated by the language or circumstances
(a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances;
(b) an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer.
(2) Where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance.
2-205 Firm Offers
An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.
2-204 Formation in General
(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.
Battle of the Forms applies when…
BEFORE a contract has been made and there are terms that are not inagreement
Battle of the Forms does not apply when…
AFTER a contract is formed and changing a term, this is a modification
207(3) applies
APPLIES if the parties have performed in some way (shipment or payment)
207(2) applies
APPLIES if the parties are merchants
IF THEY ARE NOT Merchants then their option is to reject the item to reject a term
Hill Case
to reject a term when the party is not a merchant they need to return the item
Additional Term?
207(a) applies
- If merchants
- the term becomes a part of the contract UNLESS
a. offer expressly limts acceptacne to terms of the offer
b. materially alter the contract form teh offcer (surpise or hardship)_
c. notification of rejection of term was given or giving in a reasonable time
Different Term?
Majority rule: knock out rule
differ term, both terms are tossed and follow the UCC rules
Minority Rule: Drafting Error
treat like an addtional term and apply 207(2)(a-c)
Minority Minority Rule: Offer Controls
Offer contraol, if there is an acceptacne with a different term just ignore the different term
207(1)
MUST HAVE a definate and seasonable expression of acceptance OR written confirmation ina reasonable time
UNLESS acceptance expressly conditoinal on asset to addtional terms
YES–> move on in 207
NO –> only move on if there has been partial performance
CISG
Uses the baby of Battle of the Forms and Mirror Image test
