Sales and Leases | 61
a provision giving one party power to change the destination for shipment, a term substituting goods, a term substantially increasing the price or changing the payment schedule, most any term relating to performance, and a term reallocating the risk of loss.
[ See 2 Anderson U.C.C. §§ 2-207:74-2-207:91 (3d. ed.), Westlaw (database updated Dec. 2020).]
c. Rule if One Party Is Not a Merchant If the parties’ writings form a contract, and one party is not a merchant, then any additional terms become part of the contract only if the original offeror assents to them. [ Klocek v. Gateway, Inc. , 104 F.Supp.2d 1332 (D. Kan. 2000).] 6. Whether Different Terms (as Opposed to Additional Terms) Become Part of the Final Contract As mentioned, the UCC does not specify the treatment of different terms, as opposed to additional terms, in a battle-of-the-forms scenario in which the parties’ writings do form a contract. The courts, then, have had to figure out how to deal with different terms. Perhaps unsurprisingly, the courts have developed differing approaches here. [ See 2 Anderson U.C.C. § 2-207:104 (3d. ed.), Westlaw (database updated Dec. 2020).] a. Treating Different Terms the Same as Additional Terms Some courts treat different terms in the same manner as additional terms for purposes of § 2-207 and the battle of the forms. In these courts, the rules discussed under Whether Additional Terms Become Part of the Final Contract, supra, apply with equal force to both additional and different terms. [2 Anderson U.C.C. § 2-207:104 (3d. ed.), Westlaw (database updated Dec. 2020).] b. Applying the Knock-Out Rule Some courts apply the so-called knock-out rule to determine whether different terms become part of the final contract in a battle-of-the-forms scenario in which the parties’ writings form a contract. The knock-out rule produces essentially the same result as when the parties’ writings do not form a contract, but their conduct does. Namely, contradictory terms in the respective writings cancel each other out, leaving only the terms on which the writings agree. The UCC then supplies any relevant, missing terms. [2 Anderson U.C.C. § 2-207:105 (3d. ed.), Westlaw (database updated Dec. 2020); Rule if Acceptance Is
Made with FlippingBook - Online Brochure Maker