Mutual Assent and the Battle of the Forms

Question 1

What are boilerplate terms?

Answer 1

A set of standardized clauses usually placed at the end of a document that cover a diverse set of issues, usually not directly related to the primary terms.

Question 2

What are the analysis questions for Musual Assent and Battle of the Forms?

Answer 2

1. Has a contract formed?
2. Whose terms control?

Question 3

What is the mirror image rule for common law approach?

Answer 3

An offeree’s acceptance must match every term in the offer exactly, otherwise it’s a counteroffer.

Question 4

What is the Last Shot Rule under the common law approach?

Answer 4

In response to an offer, an offeree sends an acceptance that contains additional or different terms. The other party does not accept the new terms but performs as if the original offer was accepted. In such a scenario, the offeree is deemed to have a conditional acceptance, which the offeror has accepted through performance. If a contract is formed in this fashion, then the offeree’s additional or different terms are incorporated into the contract.

A dispute arises between the parties, and the additional terms become important in the resolution of that dispute. Under the Last Shot Rule, the original offeree’s counter-offer controls.

Question 5

What are the potential responses to an offer under the UCC?

Answer 5

1. Rejection or Counteroffer or Silence
2. Unequivocal Acceptance
3. Acceptance with Varying Terms
4. Conditional Acceptance

Question 6

How can you tell if Additional or Different Terms are Incorporated into the contract?

Answer 6

1. If at least one party is NOT merchant, the additional or different terms are NOT part of the contract.
2. If both parties are merchants, the additional or different terms automatically become part of the contract UNLESS one of the following exceptions occurs: Exception 1: Original offer expressly limits acceptance by the offeree to the terms of the offer. Exception 2: Additional terms materially alter the contract. Exception 3: Other party has already objected or sends notice of their objection within a reasonable time.

Question 7

What is conditional acceptance?

Answer 7

Where the offeree accepts all of the terms of the offer on the condition that the original offeror accepts the new terms of the offeree.

Question 8

Under UCC conditional acceptance: what are the three options to see if a contract has formed?

Answer 8

Option 1: original offeror agrees to new terms and a contract forms + new terms included in the contract. Option 2: Original offeror expressly rejects new terms and no contract forms. Option 3: Parties’ conduct suggests a contract has formed and a contract forms, and 1) varying terms are knocked out, contract consists of terms that forms agree on, and UCC implies any reasonable terms that are necessary.