(A)(5) Offer and Acceptance - Effect of Additional or Different Terms Flashcards
common-law-mirror image rule
the acceptance must mirror the terms of the offer—any change to the terms of the offer, or the addition of another term not found in the offer, acts as a rejection of the original offer and as a new counteroffer
common-law-mirror-image rule - suggestions and inquiries
mere suggestions or inquiries, including requests for clarification or statements of intent, made in respond by the offeree do NOT constitute a counteroffer
common-law-mirror-image rule - conditional acceptance
a conditional acceptance terminates the offer and acts as a new offer from the original offeree
UCC rule—acceptance contains additional or different terms
the UCC does not follow the mirror-image rule—additional or different terms included in an acceptance of an offer do not automatically constitute a rejection of the original offer
how is an acceptance that contains additional or different terms with respect to the terms in the offer for the sale of goods treated?
it is treated as an acceptance rather than a rejection and a counter offer
sale of goods acceptance to offer containing additional or different terms EXCEPTION (1)
an exception exists when the acceptance is expressly conditioned on assent to the additional or different terms, in which case the acceptance is a counteroffer
UCC acceptance of different or additional terms - merchants rule
whether the additional or different terms are treated as part of the contract depends on whether the parties are merchants
UCC rule - acceptance: one or both parties are merchants
when the contract is for the sale of goods between nonmerchants or between a merchant and a nonmerchant, a definite seasonable expression of acceptance or written confirmation that is sent within a reasonable time operates as an acceptance of the original offer
UCC rule—acceptance contains additional or different terms - one or both parties are merchants
a definite and seasonable expression of acceptance or written confirmation that is sent within a reasonable time operates as an acceptance of the original offer even if it states terms that are additional or different from the offer UNLESS the acceptance is made expressly conditional on the offeror’s consent to the additional or different terms
UCC acceptance - one or both parties are not merchants: treatment of additional terms
the additional terms are treated as a proposal for addition to the contract that must be separately accepted by the offeror to become part of the contract
UCC acceptance - both parties are merchants: battle of the forms
when both parties are merchants, the parties often use sales forms that might not be designed for the particular sale in question—as a consequence, the acceptance often contains different and additional terms
whose terms form the basis of the contract in a “battle of the forms”?
the rules may vary depending on whether the terms are additional or different terms
UCC acceptance - both parties are merchants (battle of the forms): acceptance includes additional terms general rule
an additional term in the acceptance is AUTOMATICALLY INCLUDED inn the contract when both parties are merchants, UNLESS and exception applies
UCC acceptance - both parties are merchants (battle of the forms): acceptance includes additional terms EXCEPTIONS (3)
(i) the term materially alters the original contract;
(ii) the offer expressly limits acceptance to the terms of the offer; or
(iii) the offeror has already objected to the additional terms, or objects within a reasonable time after notice of them was received
if any one of these three exceptions is met, the term will not become part of the contract, and the offeror’s original terms control
how is “materially alter” defined?
a term that results in surprise or hardship if incorporated without the express awareness by the other party materially alters the original contract
