U.C.C.
§ 2-207: Battle of the Forms Flow Chart / Approach
Always start by asking whether the fact pattern shows that both Offer and
Acceptance contains (1) the Same Terms; OR (2) Additional or Different Terms.
If Same Terms exist in both the If Additional or Different Terms exist between the
Offer and the Acceptance, then a Offer and the Acceptance, then a UCC § 2-207 issue
contract is created on the terms of exists. Go on to the next two possible scenarios:
the Offer and the Acceptance.
No UCC § 2-207 issue exists.
A definite and seasonable expression of A definite and seasonable expression
acceptance was given (i.e. if offeree clearly of acceptance was NOT given (i.e. if
accepted)? If so, then go on to examine the offeree didn’t clearly accept).
possible 2 scenarios about that acceptance:
Acceptance IS NOT expressly conditional Acceptance IS expressly conditional on
on assent to different or additional terms. assent to different or additional terms.
If so, then a contract is created under UCC If so, acceptance operates as a
2-207(1). But the additional and different counteroffer. Go on to the
terms will be determined by the following: following 2 scenarios below:
If so, a contract is not created by the
exchange of Offer and Acceptance
ADDITIONAL TERMS FOR K
under UCC § 2-207(1).
BETWEEN 2 MERCHANTS: If
the contract is between
If the other party If the other But a contract may still be created by
merchants, additional terms are
expressly and party does not conduct. Ask if the facts fall within the
included in the contract unless:
unequivocally expressly & following the next 2 scenarios:
(a) the offer expressly limits accepts additional unequivocally
acceptance to the terms of the and different accept, then a
offer; OR terms, a contract is contract may
formed of terms of still be formed Parties’ conduct Parties’ conduct
(b) the additional terms indicates existence does not indicate
the counteroffer. by conduct
materially alter the contract; OR of a contract? existence of a
under UCC §
(c) notification of objection to 2-207(3). Go contract?
them has already by given or is to the following
given within a reasonable time analysis. If so, then a
after notice of them is received contract by conduct No contract
(UCC § 2-207(2). exists under UCC § exists.
2-207(3).
ADDITIONAL TERMS FOR K
NOT BETWEEN MERCHANTS: Consequently, the
If one or more parties is not a terms of the contract
Note: This flow chart was
merchant, additional terms ARE are those terms that
prepared by Washburn Bar
NOT included in the contract are a mirror-image of
Services and is merely intended
unless that party’s assent to as a supplement to help one another.
inclusion of that term is separately students gain practical Conflicting and
expressed. comprehension of the topic that additional terms are
it reflects. It is not intended to knocked out and
replace materials for a replaced by UCC
DIFFERENT/CONFLICTING comprehensive bar program, gapfillers). UCC § 2-
TERMS: Different (Conflicting) such as BarBri or Kaplan.
207(3).
terms are knocked out and
replaced by UCC Article 2 gap-
fillers.
