Can Last Shot Rule be applied uder the UCC?

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corporatelaw87
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Can Last Shot Rule be applied uder the UCC?

Postby corporatelaw87 » Wed Dec 08, 2010 2:56 pm

If one company performed, by payment, and did not reject the different terms?

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Chupavida
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Re: Can Last Shot Rule be applied uder the UCC?

Postby Chupavida » Wed Dec 08, 2010 3:17 pm

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Last edited by Chupavida on Tue Jul 19, 2011 10:35 pm, edited 1 time in total.

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BarbellDreams
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Re: Can Last Shot Rule be applied uder the UCC?

Postby BarbellDreams » Wed Dec 08, 2010 3:21 pm

Depends on if both are considered merchants. If performance is made after additional terms are put into a contract those terms are part of the contract unless they meet one of the 2-207 exceptions. If parties are not merchants additional terms are never included without express assent so if you want these additional terms in the contract you better make damn sure you make it known that it is a counteroffer and not an acceptance with additional terms (make acceptance conditional of additional terms is a good way to make it known that its a counter offer).

PirateCap'n
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Re: Can Last Shot Rule be applied uder the UCC?

Postby PirateCap'n » Wed Dec 08, 2010 3:22 pm

corporatelaw87 wrote:If one company performed, by payment, and did not reject the different terms?


I think a contract would be formed under 2-207 if they're both merchants. If that's the case, there are three tests for determining whether the terms become part of the contract: knockout rule (differing terms knock each other out and are replaced with gap fillers -- it is the majority rule), treat it like an additional term (so it could be added to the contract if it didn't materially alter it, the other party hadn't already objected, or the acceptance was conditional on the terms -- minority rule), or you can have the offeror's terms control with the differing terms falling out (minority rule).
Last edited by PirateCap'n on Wed Dec 08, 2010 3:23 pm, edited 2 times in total.

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BarbellDreams
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Re: Can Last Shot Rule be applied uder the UCC?

Postby BarbellDreams » Wed Dec 08, 2010 3:23 pm

Also keep in mind some courts differentiate between "additional and "different" terms. With different terms (meaning they are contradicting original terms of offer) the courts can apply the knockout rule, the fallout rule, or treat as additional under 2-207. Knockout rule is in majority of jurisdictions.

corporatelaw87
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Re: Can Last Shot Rule be applied uder the UCC?

Postby corporatelaw87 » Thu Dec 09, 2010 10:45 pm

so would it be kosher to use on an exam if you use the traditional 2-207 as well?




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