Quick Contracts Question - Battle of the Forms

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TJISMYHERO
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Quick Contracts Question - Battle of the Forms

Postby TJISMYHERO » Tue Sep 06, 2011 10:42 pm

Okay, I need a little clarification. Under U.C.C. 2.207, assuming both parties are merchants: If an offeree accepts an offer, but adds additional terms, and the offeror does not respond to the acceptance in any other way than through performance, can the additional terms ever be a part of the contract?



Thanks for the input.
Last edited by TJISMYHERO on Wed Sep 07, 2011 12:39 pm, edited 1 time in total.

J-tow10
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Re: Quick Contracts Question - Battle of the Forms

Postby J-tow10 » Tue Sep 06, 2011 11:00 pm

The only time you go to subsection (3) is when the writings do not otherwise form a contract (it's kind of the last resort subsection). Here, you have a valid offer and acceptance, presumably via a purchase order and acknowledgement form. Because you have two merchants, the additional terms automatically become part of the contract unless the offeree can establish one of subsection (2)'s three exceptions.

HTH. FWIW, currently in taking Sales.

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TJISMYHERO
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Re: Quick Contracts Question - Battle of the Forms

Postby TJISMYHERO » Tue Sep 06, 2011 11:06 pm

Okay, but if the acknowledgment has additional terms compared to the purchase order, and there is no further communication other than performance, do the additional terms become a part of the contract?

I guess what I'm asking is whether performance alone on the part of the offeror qualifies as consent to the additional terms brought by offeree.

Thanks for the response.

J-tow10
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Re: Quick Contracts Question - Battle of the Forms

Postby J-tow10 » Tue Sep 06, 2011 11:17 pm

Yes, because a contract was formed when the acknowledgement form was sent to the seller. Even though it adds additional terms, 2-207 is much more liberal than the common law's mirror image rule. Because we have a contact by the writings, subsection (2) tells us what to do with those additional terms. Again, the only time you go to subsection (3) is when you do not have a contract by the writings.

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TJISMYHERO
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Re: Quick Contracts Question - Battle of the Forms

Postby TJISMYHERO » Tue Sep 06, 2011 11:18 pm

Awesome, thanks.

J-tow10
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Re: Quick Contracts Question - Battle of the Forms

Postby J-tow10 » Tue Sep 06, 2011 11:20 pm

Re: consent, since it's two merchants the terms aren't just mere proposals, but instead automatically get added to the contract.

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TJISMYHERO
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Re: Quick Contracts Question - Battle of the Forms

Postby TJISMYHERO » Tue Sep 06, 2011 11:26 pm

Another quick question. If the offeror follows (2)(c) and within a reasonable amount of time gives notice of objection to the additional terms, is the contract absent those additional terms still enforceable? I'm guessing yes here.

target
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Re: Quick Contracts Question - Battle of the Forms

Postby target » Tue Sep 06, 2011 11:27 pm

J-tow10 wrote:Yes, because a contract was formed when the acknowledgement form was sent to the seller. Even though it adds additional terms, 2-207 is much more liberal than the common law's mirror image rule. Because we have a contact by the writings, subsection (2) tells us what to do with those additional terms. Again, the only time you go to subsection (3) is when you do not have a contract by the writings.


Your response makes sense to me except for the last sentence. I thought subsection (3) is more about resolving conflicts and reconcile differences in terms between merchants. Say if you have an exception in subsection (2), but the two parties ignore or don't recognize it until later. THey acted as if there is a contract, and later sued each other. Court would resolve to subsection (3) for determining who is liable.

Disclaimer: also 1L, and still reading this part, so totally confused. U.C.C. is a bitch.

target
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Re: Quick Contracts Question - Battle of the Forms

Postby target » Tue Sep 06, 2011 11:28 pm

TJISMYHERO wrote:Another quick question. If the offeror follows (2)(c) and within a reasonable amount of time gives notice of objection to the additional terms, is the contract absent those additional terms still enforceable? I'm guessing yes here.


I guess yes too in this case.

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Extension_Cord
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Re: Quick Contracts Question - Battle of the Forms

Postby Extension_Cord » Wed Sep 07, 2011 12:41 am

According to UCC 2.207 pertaining to a sale of goods between two merchants, any non-material changes made by the offeree to the contract are considered binding unless there are provisions in the contract that expressly prohibit such changes or if the offeror explicitly expresses that the changes are not accepted (I beleive the offeror has 10 days from the time acceptance was made to do this). I believe if its a conditional addition to the contract, its also auto-rejected.

morris248
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Re: Quick Contracts Question - Battle of the Forms

Postby morris248 » Wed Sep 07, 2011 6:12 am

For a good explanation of the battle of the forms go to

http://www.law-school-books.com/commercial-law.html

then click on the

"Commercial Law UCC Article Two Law School Website"

link near the bottom of the page

that should clear it up for you

J-tow10
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Re: Quick Contracts Question - Battle of the Forms

Postby J-tow10 » Wed Sep 07, 2011 9:57 am

target wrote:
J-tow10 wrote:Yes, because a contract was formed when the acknowledgement form was sent to the seller. Even though it adds additional terms, 2-207 is much more liberal than the common law's mirror image rule. Because we have a contact by the writings, subsection (2) tells us what to do with those additional terms. Again, the only time you go to subsection (3) is when you do not have a contract by the writings.


Your response makes sense to me except for the last sentence. I thought subsection (3) is more about resolving conflicts and reconcile differences in terms between merchants. Say if you have an exception in subsection (2), but the two parties ignore or don't recognize it until later. THey acted as if there is a contract, and later sued each other. Court would resolve to subsection (3) for determining who is liable.

Disclaimer: also 1L, and still reading this part, so totally confused. U.C.C. is a bitch.


Yes, both subsections (2) and (3) are about reconciling terms. However, the tendency is to automatically jump to (3) but you have to be careful about doing so. If you're in (3), then it's because you already determined there is not a contract by the writings. I believe the first sentence in (3) says "[i]f the writings do no otherwise establish a contract . . . ."

FWIW, currently a 2L in Sales and our prof wrote the casebook

target
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Re: Quick Contracts Question - Battle of the Forms

Postby target » Wed Sep 07, 2011 11:39 am

J-tow10 wrote:
target wrote:
J-tow10 wrote:Yes, because a contract was formed when the acknowledgement form was sent to the seller. Even though it adds additional terms, 2-207 is much more liberal than the common law's mirror image rule. Because we have a contact by the writings, subsection (2) tells us what to do with those additional terms. Again, the only time you go to subsection (3) is when you do not have a contract by the writings.


Your response makes sense to me except for the last sentence. I thought subsection (3) is more about resolving conflicts and reconcile differences in terms between merchants. Say if you have an exception in subsection (2), but the two parties ignore or don't recognize it until later. THey acted as if there is a contract, and later sued each other. Court would resolve to subsection (3) for determining who is liable.

Disclaimer: also 1L, and still reading this part, so totally confused. U.C.C. is a bitch.


Yes, both subsections (2) and (3) are about reconciling terms. However, the tendency is to automatically jump to (3) but you have to be careful about doing so. If you're in (3), then it's because you already determined there is not a contract by the writings. I believe the first sentence in (3) says "[i]f the writings do no otherwise establish a contract . . . ."

FWIW, currently a 2L in Sales and our prof wrote the casebook


Thank you so much for the clarification. It actually makes sense to me now.




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