U.C.C.
2-207 Battle of the Forms
IS IT FOR THE SALE OF GOODS?
No Go to common law: 1. Mirror-Image Rule 2. Last-Shot Rule
Yes
Is it a 2-207 counter offer? (Terms are expressly conditional upon offeror accepting new terms)
Yes
U.C.C. Is there definite and seasonable acceptance?
Yes
1. 2. 3.
NO no K
No
Additional
Different
Offeror can accept the terms Offeror can reject the terms Offerors conduct shows a contract exists (accepts delivery of the goods)
If #3 Neither Yes (additional)
You have a contract
Are both parties merchants?
No Yes
Go to 2-207(3) only terms agreed to in writing will hold
Three Views:
1. Additional terms are proposals that do not take effect unless agreed to (MAJORITY) KNOCK OUT DOCTRINE: different terms cancel out and replace with gap-fillers Treat the different terms as if they were additional and go to 2-207 (2) Replace different terms with offerors
2. Additional Terms come in unless taken out (then treated as proposal) by one of the things in Subsection 2: Does original offer limit additional terms?
3.
Do additional terms materially alter K? Additional terms become part of the K!
No Are additional terms objected to within a reasonable time?
2-207 (1) IS THERE A DEFINITE & SEASONABLE ACCEPTANCE (ON ORIGINAL OFFER)? IF NO 2-207 DOES NOT APPLY. IF ACCEPTANCE DEFINTE AND SEASONABLE, DOES ACCEPTANCE CONTAIN ADDITIONAL OR DIFFERENT TERMS, IF SO IS ACCEPANTANCE OF ADDITION TERMS EXPRESSLY CONDITIONAL UPON ASSENT TO THE OFFEREES NEW TERMS No UCC 2-207 counter offer - contract exists mirror image rule abolished - terms just uncertain- move to (2) (step saver) Yes, 2-2207 counter offer exists under common law no K exists move to (3) (itoh) Are terms additional or are differing terms treated the same as in 1 minority view?
NO
Using majority knockout rule eliminate differing terms and replace with gap fillers or using other minority view, the offerors terms remain and the offerees terms are eliminated
YES
UCC 2-207 (2) Are both parties merchants?
NO O
Terms become proposals, unless expressly agreed to
YES
Additional terms are considered part of the agreement unless:
UCC 2-207 (3) DOES CONDUCT OF PARTIES INDICATE THAT A CONTRACT WAS FORMED EVEN THOUGH WRITINGS SHOW NO K FORMED
(a) Offer expressly limits acceptance to the terms of offer; or
(b) Additions materially alter the agreement; or
(c)Terms are rejected or rejected in a reasonable time
YES NO
If 2-207 CO has been expressly rejected no K formed
If no express acceptance or rejection no K exists
If 2-207 CO expressly accepted K exists
K terms become what was agreed upon and applicable supplemental code (gap fillers), gap fillers used can not include terms previously rejected
