K - Hypo help requested.

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dibs
Posts: 239
Joined: Tue Feb 09, 2010 2:15 pm

K - Hypo help requested.

Postby dibs » Tue Mar 15, 2011 6:27 pm

buyer (non-merchant) wants goods. merchant says he has goods > $500. buyer says she'll accept, but only if delivered within a week. merchant says "ok".

buyer then gets merchant's standard PO form. buyer writes in a condition of acceptance on the form, then signs it. merchant is silent on the term; orders goods.

buyer finds new goods a few hours later and cancels.

was a contract formed? who was offeror/acceptor? unilateral or bilateral? mere preperations? battle of the forms? parole evidence? SoF?


make me proud, TLS. i'm interested in the unilateral/bilateral more than anything.

nymario
Posts: 239
Joined: Mon Apr 05, 2010 7:57 pm

Re: K - Hypo help requested.

Postby nymario » Tue Mar 15, 2011 10:03 pm

dibs wrote:buyer (non-merchant) wants goods. merchant says he has goods > $500. buyer says she'll accept, but only if delivered within a week. merchant says "ok".

buyer then gets merchant's standard PO form. buyer writes in a condition of acceptance on the form, then signs it. merchant is silent on the term; orders goods.

buyer finds new goods a few hours later and cancels.

was a contract formed? who was offeror/acceptor? unilateral or bilateral? mere preperations? battle of the forms? parole evidence? SoF?


make me proud, TLS. i'm interested in the unilateral/bilateral more than anything.


The contract was created when the merchant said "ok" (acceptance). The form that the buyer signed indicates his intent to be bound. SoF (UCC 2-201) is obviously triggered by the >$500, but satisfied by the buyer's signed form.

The terms of the contract are the price and delivery terms agreed upon orally. However, if the contract has a merger clause, parol evidence will be excluded. With merger clause in the PO, the buyer wouldn't even be able to claim delivery terms that were superseded by the PO.

UCC 2-207/Battle of the Forms is NOT implicated by the buyer's modification in this hypo. The acceptance had already occurred, so there is no place for further "acceptance on different or additional terms". The fact that the buyer attempted to make the acceptance "expressly conditional" is not relevant, he'd already made an offer that was accepted.

The seller's confirmation in reasonable time would have served as an alternate acceptance, had he not already verbally accepted. All the terms on the PO, however, are merely proposals. The UCC gap fillers are what apply.

In sum, contract had been created orally, but was not enforceable because of SoF. The buyer's signature of the seller's PO memorialized the contract, and satisfied SoF. The seller's terms and buyer's "expressly conditional" term do not bind the other.

Unless the item purchased is custom made/difficult to resell, however, the damages will be limited to profit and incidental damages...

With regards to bilateral vs. unilateral -- this is a promise for a promise -- pretty clearly a bilateral promise.




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