Sales and Leases | 58
rejection and a counteroffer. This common-law rule is oftentimes called the mirror-image rule. UCC Article 2, however, rejects the mirror-image rule. Under UCC § 2-207 (a favorite testing subject of law professors and bar examiners), an acceptance may form a contract even if it contains terms additional to or different from the original offer. The provision also sets forth detailed rules to determine which of the additional or conflicting terms, if any, become part of the final contract. [ See U.C.C. § 2-207 (1951); 2 Anderson U.C.C. § 2-207:3 (3d. ed.), Westlaw (database updated Dec. 2020).] 1. Scenario in Which § 2-207 Often Applies Section 2-207 generally applies if the parties behave as though they have a contract, but (1) they have not adopted a singular writing as the expression of their agreement, and (2) their exchanged writings do not agree. Section 2-207 often comes into play in a scenario called the battle of the forms . For efficiency’s sake, institutional buyers and sellers normally have preprinted forms to make or acknowledge orders for goods. The terms in these forms that buyers and sellers exchange do not always (indeed, do not often) align with each other. The seller’s form frequently contains terms additional to or different from those in the buyer’s form, and vice versa. If the parties nonetheless proceed with the transaction, there arises the need for some rule to sort out precisely which of the inconsistent terms are part of the parties’ final contract. Section 2-207 does precisely that. [ See U.C.C. § 2-207, cmt. 1 (1951); 2 Anderson U.C.C. § 2-207:25 (3d. ed.), Westlaw (database updated Dec. 2020).] 2. Significance of a Definite and Seasonable Expression of Acceptance or Written Confirmation Under § 2-207, the general rule is that if the offeree sends definite, seasonable expression of acceptance or a written confirmation (including a written confirmation of an oral agreement) within a reasonable time, then the acceptance or confirmation operates as an acceptance. Thus, a contract is formed. This rule applies even if the acceptance or confirmation contains terms additional to, or even different from, the terms offered or agreed upon. However, the acceptance or confirmation will not form a contract if acceptance is expressly conditioned on assent to the additional or different terms. [U.C.C. § 2-207(1) (1951).] 3. Rule if Acceptance Is Expressly Conditioned on Assent to the Additional or Different Terms If the offeree expressly conditions acceptance on assent to the additional or different terms, then there is a contract based on the parties’ writings only if the offeror agrees to the additional or different terms. The acceptance’s conditional nature must be clearly expressed , so as to notify the offeror that the offeree is unwilling to proceed without the additional or different terms. If the offeror agrees, then there is a contract based on the terms of the acceptance. If the offeror does not agree, then the parties’ writings do not form a contract.
Made with FlippingBook - Online Brochure Maker