battle of forms question

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jacksonmead
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Joined: Mon Mar 07, 2011 12:15 pm

battle of forms question

Postby jacksonmead » Tue Nov 20, 2012 8:52 pm

I'm getting Battle of Forms but have a question about what happens if there are additional terms in the offer. As I understand most of what the 2-207 addresses is what happens when the acceptance has additional terms (you go through the conditional/not conditional, merchant, material, etc. analysis.). But what if the offer has a term that the acceptance doesn't address.

Offer has terms A, B, C, D.
Acceptance has terms A, B, D, E.

I know what happens with E but what happens with C?

hope that's clear enough. thanks.

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JuneLSATFail
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Re: battle of forms question

Postby JuneLSATFail » Tue Nov 20, 2012 9:06 pm

the omittance of a term acts as an additional term.

apply 207 accordingly

edit: more accurately, an omitted term acts more as a "different" term, which 207 covers, sorry about the first answer.

swimmer11
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Re: battle of forms question

Postby swimmer11 » Tue Nov 20, 2012 9:25 pm

jacksonmead wrote:I'm getting Battle of Forms but have a question about what happens if there are additional terms in the offer. As I understand most of what the 2-207 addresses is what happens when the acceptance has additional terms (you go through the conditional/not conditional, merchant, material, etc. analysis.). But what if the offer has a term that the acceptance doesn't address.

Offer has terms A, B, C, D.
Acceptance has terms A, B, D, E.

I know what happens with E but what happens with C?

hope that's clear enough. thanks.


Depends if they are both merchants.

Jimbo_Jones
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Re: battle of forms question

Postby Jimbo_Jones » Tue Nov 20, 2012 10:34 pm

I'll throw out a third opinion:

I agree that the absence of C in the acceptance would be considered a "different" term. It really depends on if C is material to the contract or not. Based on Northrop Corp. v. Litronic Industries, if the "different" term is material to the agreement, then the "Knockout Rule" applies. The Knockout Rule states that differing material terms drop out and are filled in by applicable UCC gap fillers.

Either way, I do not believe UCC 2-207 applies to C. First, this is NOT the same as UCC 2-207(3). There cannot be the writings between the parties that establish a contract in order for UCC 2-207(3) to apply. Second, "different" terms are not covered by UCC 2-207(2).
Last edited by Jimbo_Jones on Tue Nov 20, 2012 10:46 pm, edited 1 time in total.

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Rawlberto
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Re: battle of forms question

Postby Rawlberto » Tue Nov 20, 2012 10:43 pm

Jimbo_Jones wrote:I'll throw out a third opinion:

I agree that the absence of C in the acceptance would be considered a "different" term. It really depends on if C is material to the contract or not. Based on Northrop Corp. v. Litronic Industries, if the "different" term is material to the agreement, then the "Knockout Rule" applies. The Knockout Rule states that differing material terms drop out and are filled in by applicable UCC gap fillers.

Either way, I do not believe UCC 2-207 applies to C. To be clear, this is NOT the same as UCC 2-207(3). There cannot be the writings between the parties that establish a contract in order for UCC 2-207(3) to apply. Second, it does not make a different if the parties are merchants or not because "different" terms are not covered by UCC 2-207(2).


I would be careful with your analysis on the second point. Some courts find the lack of the term "different" to be an issue while just think it's a boneheaded omission. Obviously go what your professor says.

swimmer11
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Re: battle of forms question

Postby swimmer11 » Tue Nov 20, 2012 10:47 pm

Rawlberto wrote:
Jimbo_Jones wrote:I'll throw out a third opinion:

I agree that the absence of C in the acceptance would be considered a "different" term. It really depends on if C is material to the contract or not. Based on Northrop Corp. v. Litronic Industries, if the "different" term is material to the agreement, then the "Knockout Rule" applies. The Knockout Rule states that differing material terms drop out and are filled in by applicable UCC gap fillers.

Either way, I do not believe UCC 2-207 applies to C. To be clear, this is NOT the same as UCC 2-207(3). There cannot be the writings between the parties that establish a contract in order for UCC 2-207(3) to apply. Second, it does not make a different if the parties are merchants or not because "different" terms are not covered by UCC 2-207(2).


I would be careful with your analysis on the second point. Some courts find the lack of the term "different" to be an issue while just think it's a boneheaded omission. Obviously go what your professor says.


I agree with Rawl, this is absolutely specific. My professor only wants us to apply the knock out rule with warranties and with arbitration, and then imply them as a matter of law. Then again, my professor thinks the majority of courts do certain things wrong.

Jimbo_Jones
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Re: battle of forms question

Postby Jimbo_Jones » Tue Nov 20, 2012 10:52 pm

Rawlberto wrote:I would be careful with your analysis on the second point. Some courts find the lack of the term "different" to be an issue while just think it's a boneheaded omission. Obviously go what your professor says.


You're right. I agree, ultimately go with what your professor stresses. Mine stressed that courts really do think it's a boneheaded omission that "different" terms are left out. But for policy reasons (promoting uniform nationwide application of the UCC), they feel compelled to apply UCC 2-207 the way the majority of courts apply it.




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