Battle of the Froms Flashcards
Under the common law, a purported acceptance that adds (even trivial) qualifications or conditions operates as a counter-offer and thereby a rejection of the offer.
Mirror image rule
Common Law
When the parties to a contract exchange documents, if the purported acceptance differs in even a trivial way, the common law finds that it is a counter-offer and not an acceptance.
If the buyer made an offer and the seller’s reply was a counter-offer, then the buyer’s acceptance of delivery of the seller’s shipment of the goods is deemed to be an acceptance of the seller’s terms.
In essence, the last set of terms placed on the table prior to the purchaser’s acceptance (by exercise of dominion over the goods) governed the terms of the contract.
The last shot principle
Common Law
A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.—-This section is really telling us whether there was acceptance!
UCC 2-207: Battle of the forms
1
The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
the offer expressly limits acceptance to the terms of the offer;
they materially alter it; or
notification of objection to them has already been given or is given within a reasonable time after notice of them is received. -This section is really telling us what the terms are if (1) tells us there has been acceptance!
UCC 2-207: Battle of the forms
2
Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act. - This section tells us how to decide whether a contract was formed when the writings don’t get us an acceptance AND it tells us what the contract terms are in such a circumstance.
UCC 2-207: Battle of the forms
3
Terms of the contract include those upon which the parties agreed and gap fillers provided by the U.C.C. provisions.
This approach continues to repudiate the “mirror-image” rule.
Should not be able to dictate terms solely because you sent offer.
Majority view “knockout rule.”
(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.
(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.
(3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party’s liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.
CISG Article 19 (counter-offer)
