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Expressly Conditioned on Assent to the Additional or Different Terms, Result if the Parties’ Writings Do Not Form a Contract, supra .]
c. Treating Acceptance with Contradictory Terms as a Counteroffer If a purported acceptance contains terms that flatly contradict a term in the initial offer, some courts treat the acceptance as a rejection and a counteroffer. Here, no contract forms based on the parties’ writings, unless perhaps the original offeror accepts the counteroffer. If the offeror does not accept, but the parties then perform as though they have a contract, then presumably, their conduct will give rise to a contract, as discussed above. This contract will consist of (1) the terms on which the parties’ writings agree and (2) any relevant gap-filling provisions in UCC Article 2. [2 Anderson U.C.C. § 2-207:107 (3d. ed.), Westlaw (database updated Dec. 2020); Result if the Parties’ Writings Do Not Form a Contract, supra .] 7. Pinpointing the Offer: Additional Terms Shipped along with a Product in a Consumer Transaction Sometimes, a consumer orders a product by phone or internet. After receiving payment, the vendor ships the product to the consumer. Along with the product, the vendor includes detailed terms and conditions. These terms and conditions will state that by keeping the product for a specified time ( e.g. , 30 days), the purchaser assents to the terms and conditions. Viewing the purchaser’s order as the initial offer, and considering that consumers generally are not merchants, the terms and conditions would become part of the final contract only if the purchaser expressly agreed to them. Viewing the shipment of the product as the initial offer, and everything leading up to it as mere preliminary negotiations, the customer would accept the offer simply by keeping the product for the designated time. In that event, the terms and conditions would be part of the contract. Courts have differed over which approach is better. [ See Klocek v. Gateway, Inc. , 104 F.Supp.2d 1332 (D. Kan. 2000); Rule if One Party Is Not a Merchant, supra .] Note : Even if one views the purchaser’s order as the initial offer, it may be that the terms and conditions will expressly make acceptance conditional on the purchaser’s agreeing to the terms and conditions. In that event, no contract would form based on the parties’ writings unless the purchaser did just that. At that point, assuming the parties’ conduct gave rise to a contract, the rules on that subject would apply. [ See Klocek v. Gateway, Inc. , 104 F.Supp.2d 1332 (D. Kan. 2000); Result if the Parties’ Writings Do Not Form a Contract, supra .] The Statute of Frauds UCC Article 2 has its own statute of frauds. Generally, Article 2’s statute of frauds applies only to contracts for the sale of goods as to which the price (not the value, but the price ) is $500 or more.
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