Top Law Schools

Is it possible to have an unqualified acceptance in UCC 2-207? Like one party would think its a counteroffer but really the terms the other party is adding are really just implicit terms. Thus, it wouldn't be a counter, and 2-207 (2) or(3) would not come into play.

If a written confirmation of acceptance adds terms, it's not unqualified. Maybe I didn't follow your question. I'm not sure what "implicit terms" means.

corporatelaw87 wrote:Is it possible to have an unqualified acceptance in UCC 2-207? Like one party would think its a counteroffer but really the terms the other party is adding are really just implicit terms. Thus, it wouldn't be a counter, and 2-207 (2) or(3) would not come into play.

there are three ways for contract formation. first part of (1), second part of (2), and (3) (which basically refers to another rule). (2) comes into play when you have an additional or different term, and that depends on if you use the knock out rule or not (and this depends on what you think of the comments; i think it's 6?). you can't hit (2) if you formed a contract through (3). 207 is meant to protect the buyer. if you form a contract through the second part of (1) (i think...) then you have a situation in which the seller is given the protection of the buyer, which then becomes confusing. i have no idea why i typed all that. i am trying to do anything but look at secured transactions...

what do you mean by implicit terms? do you mean the warranty things (article 3?)? i think certain terms are implied into all contracts. so if you're talking about that, i don't think someone adding a term like that is going to affect anything.

Also not sure I understand your question, but will take a shot: if acceptance is truly 'unqualified' (I'm taking this to mean there are no actual additional or different terms) then 2-207 would not apply (as by definition it only applies where there are additional or different terms). In that case I believe 2-204 generally governs.

I'm sure as a practicality that parties do disagree on whether certain terms are additional or not, and that judicial interpretation of the terms can naturally affect whether 2-207 is applied or not..

In terms of the statute, I think comment (1) of 2-207 (not subsection 1, but comment 1) may help clarify how this statute approaches terms you are referring to as 'implicit' when it speaks of words added that perhaps can be reasonably assumed as not materially altering the contract such as 'rush' or 'deliver on Tuesday..' However, even with these terms that clearly don't seem to materially alter the agreement 2-207 does apply: this suggests that probably if there is ANY difference or addition of terms in the process of acceptance or confirmation- even if slight- and a party wanted to claim that there was an addition or difference, then 2-207 likely would be used to decide the case if it involved a sale of goods from what I can tell...

In terms of whether something is a counteroffer or not, 2-207 avoids this language, perhaps obviating the distinction. As you probably know, under the traditional 'mirror image' rule, any terms that varied from the offer were considered a counteroffer if asserted during an acceptance; but I think even when the 'mirror-image' approach was in its prime courts may have used discretion to determine that certain alterations were so trivial- and did not materially alter the agreement in any way- such that there was an acceptance rather than a counteroffer, even where objectively there were specific terms that seemed to be added (FAIRMOUNT GLASS WORKS v. CRUNDEN MARTIN is one example). Currently I think for something to even be considered a counteroffer it by definition needs to have involved an alteration (addition etc) that materially affects the bargain even where UCC doesn't apply. If it is clear that slighly additional or different terms have no material bearing on the agreement then I have a hard time seeing a court considering the agreement void because the offer was implicitly rejected by a 'counteroffer.'

The purpose of 2-207, in addition to protecting the original offeror from the 'last-shot' advantage the offeree previously enjoyed under the mirror image rule, I think was also to give flexibility such that terms could be reasonably construed in such as way as to not frustrate the basic intention of the parties to complete the sale. Of course 2-207 is a notoriously controversial and criticized statute.. Thanks for the food for thought!

Lawquacious wrote:Also not sure I understand your question, but will take a shot: if acceptance is truly 'unqualified' (I'm taking this to mean there are no actual additional or different terms) then 2-207 would not apply (as by definition it only applies where there are additional or different terms). In that case I believe 2-204 generally governs.

I'm sure as a practicality that parties do disagree on whether certain terms are additional or not, and that judicial interpretation of the terms can naturally affect whether 2-207 is applied or not..

In terms of the statute, I think comment (1) of 2-207 (not subsection 1, but comment 1) may help clarify how this statute approaches terms you are referring to as 'implicit' when it speaks of words added that perhaps can be reasonably assumed as not materially altering the contract such as 'rush' or 'deliver on Tuesday..' However, even with these terms that clearly don't seem to materially alter the agreement 2-207 does apply: this suggests that probably if there is ANY difference or addition of terms in the process of acceptance or confirmation- even if slight- and a party wanted to claim that there was an addition or difference, then 2-207 likely would be used to decide the case if it involved a sale of goods from what I can tell...

In terms of whether something is a counteroffer or not, 2-207 avoids this language, perhaps obviating the distinction. As you probably know, under the traditional 'mirror image' rule, any terms that varied from the offer were considered a counteroffer if asserted during an acceptance; but I think even when the 'mirror-image' approach was in its prime courts may have used discretion to determine that certain alterations were so trivial- and did not materially alter the agreement in any way- such that there was an acceptance rather than a counteroffer, even where objectively there were specific terms that seemed to be added (FAIRMOUNT GLASS WORKS v. CRUNDEN MARTIN is one example). Currently I think for something to even be considered a counteroffer it by definition needs to have involved an alteration (addition etc) that materially affects the bargain even where UCC doesn't apply. If it is clear that slighly additional or different terms have no material bearing on the agreement then I have a hard time seeing a court considering the agreement void because the offer was implicitly rejected by a 'counteroffer.'

The purpose of 2-207, in addition to protecting the original offeror from the 'last-shot' advantage the offeree previously enjoyed under the mirror image rule, I think was also to give flexibility such that terms could be reasonably construed in such as way as to not frustrate the basic intention of the parties to complete the sale. Of course 2-207 is a notoriously controversial and criticized statute.. Thanks for the food for thought!

I think you hit it. By implicit I meant like terms that are normally included in standard agreement, like givens, but for some reason these merchants did not include them.

usage of trade, course of performance, course of dealing then?

What do you mean by implicit terms? Are you talking about things like requests (like where one party wants to use a different shipping method, but this does not materially alter the contract)?