Sales and Leases | 60
a. Rules for Additional Terms in a Transaction between Merchants Between merchants , additional terms in the acceptance or confirmation become part of the contract, unless: the offer expressly limits acceptance to the offer’s terms, the additional terms materially alter the offer, or notification of objection to the additional terms either has already been given or is given within a reasonable time after notice of the additional terms is received.
[U.C.C. § 2-207(2) (1951).]
b. Whether Additional Terms Materially Alter the Offer In general, an additional term materially alters the offer if it would cause the offeror unreasonable surprise or hardship, were it incorporated into the agreement without the offeror’s express awareness. Surprise generally means that the party neither expected nor reasonably should have expected the term. Hardship normally refers to substantial economic hardship. The concern here is to avoid additional terms that would effectively ambush the offeror. Otherwise, the material-alteration standard is deliberately vague, leaving courts to apply it considering the parties’ reasonable expectations, the contractual terms, and any relevant customs or trade usages that would inform the parties’ expectations. [ See U.C.C. § 2-207, cmt. 4 (1951); 2 Anderson U.C.C. §§ 2-207:74, 2-207:75 (3d. ed.), Westlaw (database updated Dec. 2020).] Examples of Alterations Often Found to Be Material Some types of alterations are commonly (though not always) found to be material, including: a requirement to arbitrate any disputes, a forum-selection clause providing that any lawsuits must be brought in a particular forum, a choice-of-law clause providing that one state’s law governs the transaction, an indemnification requirement, a clause limiting liability, a disclaimer of any warranty, a term limiting the duration of any warranty, a requirement that one party pay attorney’s fees arising out of an overdue invoice or some other dispute,
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