Battle of the Forms

Question 1

Relevant Law?

Answer 1

UCC Sec. 2-207

Question 2

UCC 2-207 Sub 1

Answer 2

1. Definite and seasonable expression of acceptance (or written confirmation)?
2. Does DSEA include additional or different terms?
3. Is acceptance made “expressly conditioned” on new terms?
   This provision replaces mirror-image rule in common law and allows acceptance with new terms

Question 3

DSEA Definition

Answer 3

acknowledgment that purports to accept an offer of sale;
agrees on SM, price and quantity; and
expresses a present intention to form and execute a K

Question 4

Additional Terms

Answer 4

Terms that do not contradict any term in the offer

Question 5

Different Terms

Answer 5

terms that contradict express terms contained in offer

Question 6

If DSEA does not include new terms under Sub 1?

Answer 6

unlikely, but you have mirror image acceptance

Question 7

Expressly Conditioned?

Answer 7

must contain specific language “expressly conditioned” (i.e. track language in the statute);
courts construe narrowly to apply only to acceptance which clearly shows offeree is unwilling to proceed absent assent to new terms;
“subject to the following terms . . “ is not good enough

Question 8

UCC Sec. 2-207 Sub. 2

Answer 8

1. Between merchants only
2. Are terms additional or different?
   2a. If additional - become party of K unless: offer expressly limits acceptance or material alteration or reasonable notification of objection
   2b. If different look to jurisdiction

Question 9

Merchant

Answer 9

person who deals in goods of the kind or holds himself out as having knowledge or skill pecular to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employent

Question 10

If not a merchant under 2-207 sub 2

Answer 10

additional terms in acceptance disappear (unless accepted). Terms of original offer are incorporated (like drop-out rule)

Question 11

Material Alteration

Answer 11

non-industry standard; undue surprise or hardship

Question 12

Knock Out Rule for Diff. Terms

Answer 12

(Sub 2) Majority Rule: discrepant terms fall out and are replaced by suitable UCC gap-filler

Question 13

Drop-Out Rule for Diff. Terms

Answer 13

(Sub 2) Different terms in acceptance drop out. Offeror’s terms are incorporated

Question 14

CA Rule for Diff. Terms

Answer 14

different terms are treated like additional terms b/c CA recognizes mistake in UCC language. Different terms become part of the contract unless:
offer “expressly limits” new terms; material alteration; or reasonable notice given of objection

Question 15

Additional Terms

Answer 15

(Sub 2). Additional terms are included unless: offer “expressly limits” acceptance to its terms; material alteration; or reasonable notice given of objection

Question 16

When to use UCC Sec. 2-207 Sub. 3

Answer 16

When conduct of parties recognize existence of a contract although writings to not.

Question 17

Implied-In-Fact Contract

Answer 17

A contract that parties presumably intended, either by tacit understanding or by the assumption that it existed (like Sub 3)

Question 18

When to use UCC Sec. 2-207 Sub. 2

Answer 18

If have DSEA between merchants, w/add. or diff terms not expressly conditioned.

Question 19

Knock-In Rule (Sub 3)

Answer 19

take both documents and put in things that match. all others out and use UCC gap fillers

Question 20

Predominant Purpose Test

Answer 20

goods v. services?

1. language of K
2. nature of business of supplier
3. intrinsic worth of materials

Question 21

UCC Gap Filler: Delay

Answer 21

“material” delay only reason Buyer can reject. use industry standard

Question 22

UCC Gap Filler: Warranty

Answer 22

may return w/in reasonable time. use industry standard

Question 23

UCC Gap Filler: Indemnification

Answer 23

None - you can always sue

Question 24

UCC Gap Filler: Attorneys Fees

Answer 24

Each pays his own

Question 25

UCC Sec. 2-209

Answer 25

An agreement modifying a contract within this division needs no consideration to be binding.