Battle of the Forms

Question 1

When does battle of the forms come into play?

Answer 1

When an acceptance to an offer contains different or additional terms

Question 2

In plain english, what does 2-207(1) say/govern?

Answer 2

• Acceptance can be valid even if the acceptance contains additional or different terms.
• Acceptance must be timely and not made conditional upon additional or different terms.

Question 3

Under 2-207(2), when do additional terms control?

Answer 3

Additional terms control only if (1) both parties are merchants, (2) the original offer did not limit acceptance to its terms, (3) the new term doesn’t materially alter the deal, and (4) the offeror doesn’t object to the additional terms.

Question 4

In the case of different terms, what happens in a comment 3 jurisdiction?

Answer 4

Treat the different terms as additional terms and run 2-207(2) analysis.

As a practical matter, many courts consider different terms as materially altering the original offer.

Question 5

In the case of different terms, what happens in a knock out rule jurisdiction?

Answer 5

The different terms in the offeror’s original offer and the offeree’s purported “acceptance” knock each other out.

Question 6

What is the presumption when both parties are merchants versus not both merchants?

Answer 6

The presumption when both parties are merchants is that the changes become a part of the contract.