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oral k for 1000 stuffed tigers followed by 2 simultaneous writing confirmations
-one confirmation states 1000 stuffed tigers, restates basic terms with slight additions
-other confirmation states 1000 stuffed lions, changes a few terms and uses expressly conditional on assent language
-neither party responds to other party's confirmation
-party 2 ships per its terms

my questions?:
1. under 2-207(1) is there still a K even though lions is wildly different from tigers? can there be a counteroffer in simultaneous written confirmations?
2. i i assume this goes to 207(3)-->UCC gap-fillers; but if there's a K under 2-207(1), what is the 2-207(2) analysis for construing the type of animal?

who's the buyer?
edit: nevermind

midwesternlife33 wrote:oral k for 1000 stuffed tigers followed by 2 simultaneous writing confirmations
-one confirmation states 1000 stuffed tigers, restates basic terms with slight additions
-other confirmation states 1000 stuffed lions, changes a few terms and uses expressly conditional on assent language
-neither party responds to other party's confirmation
-party 2 ships per its terms

my questions?:
1. under 2-207(1) is there still a K even though lions is wildly different from tigers? can there be a counteroffer in simultaneous written confirmations?
2. i i assume this goes to 207(3)-->UCC gap-fillers; but if there's a K under 2-207(1), what is the 2-207(2) analysis for construing the type of animal?

i assume the "other" is the seller, right?
isn't there something in (1) that covers this type of K formation? i can't find my UCC with me right now.

i think the offeree is screwed then

since his offer materially alters the K, offeror's silence != acceptance, and rather offeree is held to offeror's original terms

My question is basically what happens in the case of an oral K followed by 2 simultaneous written confirmations when an obviously material term differs in the confirmation despite being agreed upon in the oral. And also whether the expressly conditional assent necessary clause has any relevance (i.e. is there just no K because of wildly different terms?; is this a CO because of the expressly conditional assent clause?). Just a K by performance under sub(3)?

Alright, take this step by step.

Are the parties merchants?

If Yes:
Does the offer expressly limit acceptance to the terms of the agreement?
- The first written confirmation does not, so it's okay.
- The second contract does. Already, these terms are not specifically added to the contract, and the original deal stands.

Does the first confirmation materially alter the contract?
- No. But the second confirmation would have trouble here, too.

Has either party previously or currently objected?
- No. If this is a K between merchants, the first confirmation stands. The second is stricken down.


If No:
- Look to common terms of the writings and the actions of the parties. Based on common terms, 1,000 items will be shipped. However, the oral contract may be used as parol evidence to suggest that there was mutual assent to a binding contract for 1,000 stuffed tigers.

Thanks for the help. But has there been any definite and seasonable acceptance by the 2nd party (the shipper) to even go into the 207(2) analysis?

GeePee wrote:Alright, take this step by step.

Are the parties merchants?

If Yes:
Does the offer expressly limit acceptance to the terms of the agreement?
- The first written confirmation does not, so it's okay.
- The second contract does. Already, these terms are not specifically added to the contract, and the original deal stands.

Does the first confirmation materially alter the contract?
- No. But the second confirmation would have trouble here, too.

Has either party previously or currently objected?
- No. If this is a K between merchants, the first confirmation stands. The second is stricken down.


If No:
- Look to common terms of the writings and the actions of the parties. Based on common terms, 1,000 items will be shipped. However, the oral contract may be used as parol evidence to suggest that there was mutual assent to a binding contract for 1,000 stuffed tigers.

yes im curious, does the 2nd party's materially altered change = we go w/ the 1st party's terms or is there simply no K?

if they arent merchants, shouldnt the 1st party's terms still win? or does section 3 of 2-207 apply to both merchants and non-merchants? or is there just no enforceable K at all since 1st party has not yet acted as if there is even a K?

midwesternlife33 wrote:Thanks for the help. But has there been any definite and seasonable acceptance by the 2nd party (the shipper) to even go into the 207(2) analysis?

You shouldn't be looking for a definite and seasonal acceptance in the written confirmations if your contract has already been formed. You start by analyzing the additional terms. I think changing them from tigers to lions is a material alteration, and does not become a part of the K. Party 2 breached when they shipped lions.

But doesn't the materially alter exception only apply to additional terms in the confirmations? I thought when there are different terms, the majority rule is to knock them out and replace them with UCC gap-fillers. But there's no UCC gap-filler for lions vs. tigers, so what result?

midwesternlife33 wrote:But doesn't the materially alter exception only apply to additional terms in the confirmations? I thought when there are different terms, the majority rule is to knock them out and replace them with UCC gap-fillers. But there's no UCC gap-filler for lions vs. tigers, so what result?

additional = different in most jdxs doesnt it (Richardson v. Union Carbide Industrial Gases)?

Is a confirmation that states materially different terms the same as an acceptance that states materially different terms? Something seems weird about using 2-207 in this context. At any rate, 2-207(3) seems entirely inappropriate, because the contract was established by neither conduct nor writings but by words. So if a court applies 2-207(2) (if they subscribe to additional=different line of thinking) then materially different terms fall out. Otherwise, the "confirmation" is just a request for modification. I doubt this guy is getting out of his deal by "confirming" an entirely different deal.

ok i thought about this some more and talked it over w/ a friend about 2-207

if they are merchants, (2) of 2-207 court will decide if tigers -> lions is material or not (if not, party 2 wins); if material (likely), go to (3) knockout and then default UCC grab-bag rules apply

since iunno wtf would replace tigers/lions in a knockout...prob no K

If 2-207 isn't applicable to these facts, then what is? I still am not entirely sure what the result is. And is it true that additional = different as the majority rule? I have something different in my notes.

DoubleChecks wrote:ok i thought about this some more and talked it over w/ a friend about 2-207

if they are merchants, (2) of 2-207 court will decide if tigers -> lions is material or not (if not, party 2 wins); if material (likely), go to (3) knockout and then default UCC grab-bag rules apply

since iunno wtf would replace tigers/lions in a knockout...prob no K

I think this sounds right?

midwesternlife33 wrote:If 2-207 isn't applicable to these facts, then what is? I still am not entirely sure what the result is. And is it true that additional = different as the majority rule? I have something different in my notes.

i think so; check the case i cited, i havent reread it since but i think the court ended up going w/ that

DoubleChecks wrote:

midwesternlife33 wrote:If 2-207 isn't applicable to these facts, then what is? I still am not entirely sure what the result is. And is it true that additional = different as the majority rule? I have something different in my notes.

i think so; check the case i cited, i havent reread it since but i think the court ended up going w/ that

According to my professor and every supplement I've looked at, the "knockout" approach is the majority rule. This means that they are not treated the same way as additional terms. Actually, the case you cited even adopts the "knockout" rule. Here's the link:
--LinkRemoved--

PirateCap'n wrote:

DoubleChecks wrote:

midwesternlife33 wrote:If 2-207 isn't applicable to these facts, then what is? I still am not entirely sure what the result is. And is it true that additional = different as the majority rule? I have something different in my notes.

i think so; check the case i cited, i havent reread it since but i think the court ended up going w/ that

According to my professor and every supplement I've looked at, the "knockout" approach is the majority rule. This means that they are not treated the same way as additional terms. Actually, the case you cited even adopts the "knockout" rule. Here's the link:
--LinkRemoved--

huh? i didnt say the knockout rule doesnt apply -- it definitely does. i was just saying, off the top of my head, i thought the Richardson case pretty much was saying additional and different werent really going to be treated differently. so i just read 2-207 (2) as "the additional (or different) terms are to be construed...etc."

2-207 (3) does not mention 'different' or 'additional' ...so in this hypo, i think, because it is a material change (an exception under 2-207 (2)), it would go to the knockout rule (3).

DoubleChecks wrote:

PirateCap'n wrote:

DoubleChecks wrote:

midwesternlife33 wrote:If 2-207 isn't applicable to these facts, then what is? I still am not entirely sure what the result is. And is it true that additional = different as the majority rule? I have something different in my notes.

i think so; check the case i cited, i havent reread it since but i think the court ended up going w/ that

According to my professor and every supplement I've looked at, the "knockout" approach is the majority rule. This means that they are not treated the same way as additional terms. Actually, the case you cited even adopts the "knockout" rule. Here's the link:
--LinkRemoved--

huh? i didnt say the knockout rule doesnt apply -- it definitely does. i was just saying, off the top of my head, i thought the Richardson case pretty much was saying additional and different werent really going to be treated differently. 2-207 (3) does not mention 'different' or 'additional' ...so in this hypo, i think, because it is a material change, it would go to the knockout rule.

Good enough. I was just noting that the "additional=different" is not the majority rule -- knockout is. Other than that, my mind's half gone from today, so if what I'm saying doesn't make sense, just ignore me

DoubleChecks wrote:ok i thought about this some more and talked it over w/ a friend about 2-207

if they are merchants, (2) of 2-207 court will decide if tigers -> lions is material or not (if not, party 2 wins); if material (likely), go to (3) knockout and then default UCC grab-bag rules apply

since iunno wtf would replace tigers/lions in a knockout...prob no K

The problem is it doesn't make sense. 2-207(3) only applies if the conduct establishes the contract. Here, it wasn't the conduct, it was the oral agreement. I really doubt that there can be a fully formed K, for the sale of tigers, and one party can get out of it by sending a document called "confirmation" for the sale of lions. It's a different deal. It may be construed as a request for modification; it may even give weight to party 2 claiming they never assented to selling tigers. But it doesn't alter the original deal just because it's called "confirmation".

ogurty wrote:

DoubleChecks wrote:ok i thought about this some more and talked it over w/ a friend about 2-207

if they are merchants, (2) of 2-207 court will decide if tigers -> lions is material or not (if not, party 2 wins); if material (likely), go to (3) knockout and then default UCC grab-bag rules apply

since iunno wtf would replace tigers/lions in a knockout...prob no K

The problem is it doesn't make sense. 2-207(3) only applies if the conduct establishes the contract. Here, it wasn't the conduct, it was the oral agreement. I really doubt that there can be a fully formed K, for the sale of tigers, and one party can get out of it by sending a document called "confirmation" for the sale of lions. It's a different deal. It may be construed as a request for modification; it may even give weight to party 2 claiming they never assented to selling tigers. But it doesn't alter the original deal just because it's called "confirmation".

But the first party shipped. If the receiving party received notice of shipment and didn't object, would this be sufficient conduct for a 207(3) situation?

ogurty wrote:

DoubleChecks wrote:ok i thought about this some more and talked it over w/ a friend about 2-207

if they are merchants, (2) of 2-207 court will decide if tigers -> lions is material or not (if not, party 2 wins); if material (likely), go to (3) knockout and then default UCC grab-bag rules apply

since iunno wtf would replace tigers/lions in a knockout...prob no K

The problem is it doesn't make sense. 2-207(3) only applies if the conduct establishes the contract. Here, it wasn't the conduct, it was the oral agreement. I really doubt that there can be a fully formed K, for the sale of tigers, and one party can get out of it by sending a document called "confirmation" for the sale of lions. It's a different deal. It may be construed as a request for modification; it may even give weight to party 2 claiming they never assented to selling tigers. But it doesn't alter the original deal just because it's called "confirmation".

sry, in one of my earlier posts, i had mentioned that since the 1st party has not even done anything to show that there's conduct establishing a K, 2nd party just off his rocker

midwesternlife33 wrote:

ogurty wrote:

DoubleChecks wrote:ok i thought about this some more and talked it over w/ a friend about 2-207

if they are merchants, (2) of 2-207 court will decide if tigers -> lions is material or not (if not, party 2 wins); if material (likely), go to (3) knockout and then default UCC grab-bag rules apply

since iunno wtf would replace tigers/lions in a knockout...prob no K

The problem is it doesn't make sense. 2-207(3) only applies if the conduct establishes the contract. Here, it wasn't the conduct, it was the oral agreement. I really doubt that there can be a fully formed K, for the sale of tigers, and one party can get out of it by sending a document called "confirmation" for the sale of lions. It's a different deal. It may be construed as a request for modification; it may even give weight to party 2 claiming they never assented to selling tigers. But it doesn't alter the original deal just because it's called "confirmation".

But the first party shipped. If the receiving party received notice of shipment and didn't object, would this be sufficient conduct for a 207(3) situation?

I doubt it, again, because this contract exists prior to the conduct, so the conduct does not establish the contract. However, party 2 may have a case for assent to modification by silence. After all, party 1 got the modification, and (you're saying) he also got notice of shipment, so they might have to climb the "good faith" hill. But even this I think is weak.

The "confirmations" were sent simultaneously, does this implicate things at all? I would think seller would have an argument that he never assented to the terms of the oral K at all.

Now that I think about it, I don't think 2-207(3), even if it's applicable, comes out differently. The UCC gap-filler on lions or tigers would principles of interpretation. Express terms of oral K will win.

I still think talking 2-207(3) = falling down a rabbit hole.