Mirror Image Rule & UCC 2-207 Flashcards
What is the common law Mirror image rule?
Under the common law, the terms in the acceptance MUST match the terms of the offer exactly – otherwise it is not an acceptance, it is a counteroffer.
What is UCC 2-207 (Battle of the Forms)
UCC 2-207 determines whether the purported acceptance (containing new terms) will operate as an acceptance or as a counter offer.
Under the UCC, does the acceptance have to mirror the offer to be valid?
Under the UCC, the acceptance does not have to mirror the offer. ( i.e., the acceptance can include different or additional terms from those in the offer).
What is the criteria set forth in UCC 2-207 that determines whether an acceptance is valid or a counter offer?
Under UCC 2-207, a valid acceptance occurs if:
- A definite and seasonable expression of acceptance or written confirmation;
- Which is sent within a reasonable amount of 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 upon assent to the additional or different terms.
Under the UCC, if acceptance (with additional or different terms) is valid what is the next inquiry?
If the purported acceptance is a valid acceptance under UCC 2-207, the next issue is whether the additional or different terms in the acceptance will govern the contract or whether UCC gap fillers will be implemented.
Generally, when do additional terms govern a contract under the UCC?
Under UCC 2-207, the ADDITIONAL terms will govern the contract if BOTH parties are merchants.
When will additional terms not govern a contract under the UCC?
- The initial offer expressly limited acceptance to its terms;
- The additional terms materially alter the deal;
- The offeror objects to the additional terms within a reasonable amount of time.
What is the knockout rule?
Most courts apply the knockout rule with UCC 2-207 to determine whether the new terms control or whether UCC gap filler must be implemented.
True or false: The knockout rule makes a distinction between additional and different terms?
True. Under the knockout rule, a distinction is made between “different” and “additional” terms.
What is a different term?
A different term is a term that was not included in the original offer that CONFLICTS with the terms of the original offer (i.e., offeree changes the price)
What is an additional term?
An additional term is a term that was not included in the original offer that does NOT conflict with the original offer (e.g., the offeree adds a choice of law provision that was not included in the original offer and sends it back to the offeror.)
What happens to “different” terms under the knockout rule?
Under the knockout rule, different terms in the original offer and acceptance knock each other out creating a gap in the contract. UCC gap fillers are then used to plug this gap (regardless of whether the parties are merchants).
What happens to “additional” terms under the knock out rule?
The knockout rule does not apply to additional terms added by the offeree. UCC 2-207 will determine whether the additional terms control or whether UCC gap fillers must be implemented.
