UCC 2-207 Question: Additional Terms Forum

[Mr.Feeny]

I might have known the answer to this at some point but for some reason it escapes me right now...

(My question is for a contract NOT between merchants)

So if an acceptance has additional/different terms but isn't expressly conditional, for material terms to become part of the contract there has to be express assent. But what about non-material terms, like something trivial? Do those require express assent too? Or would I revert to 2-207(3) in which case just the terms they agree on would become part of the contract?

Thanks! Hope my wording wasn't confusing

[kalvano]

o If under UCC, § 2-207(1) – “mirror image” not necessary, but no “drastic changes”
 Cannot qualify acceptance on agreement to newer terms

[OGR3]

This might help. These are the gap-filling provisions of article 2: (§ 2-305, 2-306, 2-307, 2-308, 2-309, 2-310, 2-504, 2-509)

If the parties behave like there's a contract, you use whatever is agreed upon plus all that jazz.

[Geist13]

o If under UCC, § 2-207(1) – “mirror image” not necessary, but no “drastic changes”
 Cannot qualify acceptance on agreement to newer terms

You can qualify your acceptance. --> "unless acceptance is expressly made conditional on assent to the additional or different terms"

I might have known the answer to this at some point but for some reason it escapes me right now...

(My question is for a contract NOT between merchants)

So if an acceptance has additional/different terms but isn't expressly conditional, for material terms to become part of the contract there has to be express assent. But what about non-material terms, like something trivial? Do those require express assent too? Or would I revert to 2-207(3) in which case just the terms they agree on would become part of the contract?

Thanks! Hope my wording wasn't confusing

The bit about material alterations only applies when the parties are merchants. 2-207 simply states "The additional terms are to be construed as proposals for addition to the contract."

[kalvano]

2-207. Additional Terms in Acceptance or Confirmation.

(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

* (a) the offer expressly limits acceptance to the terms of the offer;
* (b) they materially alter it; or
* (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

You can change the terms of the contract in minor ways and still have an acceptance (unlike classical contracts where the acceptance had to "mirror image" the offer), but you can't make acceptance conditional on the offeror accepting the new terms.

[Geist13]

2-207. Additional Terms in Acceptance or Confirmation.

(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

* (a) the offer expressly limits acceptance to the terms of the offer;
* (b) they materially alter it; or
* (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

You can change the terms of the contract in minor ways and still have an acceptance (unlike classical contracts where the acceptance had to "mirror image" the offer), but you can't make acceptance conditional on the offeror accepting the new terms.

Right, no mirror image rule. But the minor changes don't become part of the K, they are simply proposals (2-207 negates the last shot rule), offeror is free to reject them and there would still be formation of the K. You can make your acceptance conditional; it must be expressly stated as so though. Of course, its not an acceptance in that case, it is a formal counter-offer. We may be saying the same thing differently there, I'm not sure.

[kalvano]

We may be saying the same thing differently there, I'm not sure.

We are. You're saying it in formal exam language, I'm saying it in "trying to avoid outlining but still making half-hearted attempt" language.

[Mr.Feeny]

thanks for the help! i was over-thinking everything