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In the CMR (contracts page 15) it states that "if the parties ship or accept goods after a conditional acceptance, a contract is formed by their conduct and the new terms are NOT included. However, in Epstein's lecture (lecture notes page 11) he says that a conditional acceptance with an arbitration clause IS included in the contract that is formed by conduct.

Which is it? Thank you.

Doesn't it have something to do with if it is material term?

I thought Epstein said that it was not included in the contract, unless it was "only if" type language.

I could be wrong though. Also, I think I am going to make a black letter law bar prep thread for questions like this

sublime wrote:Doesn't it have something to do with if it is material term?

I thought Epstein said that it was not included in the contract, unless it was "only if" type language.

I could be wrong though. Also, I think I am going to make a black letter law bar prep thread for questions like this

That's a great idea.

Let me clarify:

In Epsteins lecute his hypo involves a lease between L and T. T sends a conditional acceptance which states " accept provided that all disputes be resolved by arbitration." This is a rejection and a counteroffer. If L then does not answer but sends T the keys to the apartment then a K is formed with the arbitration clause. I understand this BUT the CMR states "if the parties ship or accept goods after a conditional acceptance, a contract is formed by their conduct (similar to the L and T hypo) and the new term is NOT included."

Is this because we are dealing with Common Law on one hand and UCC on the other?

LionelHutzJD wrote:

sublime wrote:Doesn't it have something to do with if it is material term?

I thought Epstein said that it was not included in the contract, unless it was "only if" type language.

I could be wrong though. Also, I think I am going to make a black letter law bar prep thread for questions like this

That's a great idea.

Let me clarify:

In Epsteins lecute his hypo involves a lease between L and T. T sends a conditional acceptance which states " accept provided that all disputes be resolved by arbitration." This is a rejection and a counteroffer. If L then does not answer but sends T the keys to the apartment then a K is formed with the arbitration clause. I understand this BUT the CMR states "if the parties ship or accept goods after a conditional acceptance, a contract is formed by their conduct (similar to the L and T hypo) and the new term is NOT included."

Is this because we are dealing with Common Law on one hand and UCC on the other?

Yea, I think it is because the Goods are Art 2 and the lease is CL.

I ended up making a thread: http://www.top-law-schools.com/forums/v ... 1&t=265288

Idk if it will be as popular but the one in the Students forum was helpful during 1L especially, I thought.

Fu** it. I'm emailing Epstein.

LionelHutzJD wrote:Fu** it. I'm emailing Epstein.

If he uses "damn" "son" or "Conviser" in the answer you have to let us know.

Also, you can say fuck here if you want to.

Leasing an apt. does not fall under the UCC, is governed under CL, and therefore the mirror image rule applies--any variation in the offer terms by the offeree will constitute a rejection/counter-offer. As a result, in Epstein's example, the offeree's counteroffer with the arbitration clause is a bilateral K that can be accepted by a promise to perform or performance. When the offeror delivers the keys w/o saying anything, a bilateral K has been formed with the arbitration clause included.

here is the rule under UCC regarding conditional acceptances (not clear in Barbri handouts/CMR)

1. if there is an acceptance that is made expressly conditional, and the original offeror accepts the new offer by words (rather than conduct) then a contract with the additional terms will be created.

2. if there is an acceptance that is made expressly conditional, and the original offeror accepts by conduct (rather than by words) then a K will only be formed on the basis of those terms on which the writings of the parties agree.

naenae2745 wrote:Leasing an apt. does not fall under the UCC, is governed under CL, and therefore the mirror image rule applies--any variation in the offer terms by the offeree will constitute a rejection/counter-offer. As a result, in Epstein's example, the offeree's counteroffer with the arbitration clause is a bilateral K that can be accepted by a promise to perform or performance. When the offeror delivers the keys w/o saying anything, a bilateral K has been formed with the arbitration clause included.

here is the rule under UCC regarding conditional acceptances (not clear in Barbri handouts/CMR)

1. if there is an acceptance that is made expressly conditional, and the original offeror accepts the new offer by words (rather than conduct) then a contract with the additional terms will be created.

2. if there is an acceptance that is made expressly conditional and the original offeror accepts by conduct (rather than by words) then a K will only be formed with only those terms on which the parties' writings agree.

Thank you and thank you for agreeing on the ambiguity regarding the CMR.