Mutual Assent - Acceptance Flashcards
Acceptance Requirements
(CAVE)
Communicated to the offeree
Agree/assent to all the terms
Voluntary assent
Effective on dispatch (Mailbox Rule)
Mirror Image Rule
consumer contracts
mirror image of the offer
Can’t
(a) add to
(b) subtract
(c) vary from the offer
Silence as acceptance
- General Rule: Silence is not acceptance - no duty to say no
Does the battle of the forms rule apply to offer?
No, Battle of the forms rule applies to acceptance, NOT offer
Battle of the Forms Elements
- Merchants
- Accepts but changes terms (added or different terms)
- DEMANDS/REQUESTS consideration of changed terms
IF REQUESTS
– Additional Terms Rule
– Different Terms Rule
IF DEMANDS
– Battle of the Forms doesn’t apply, they made counteroffer
When do additional terms become a part of the contract via the battle of the forms rule?
Additional terms become part of the contract if:
- the original offer did not prohibit additional terms
- the additional terms do not materially alter the contract
- the offeror does not object to the additional terms within a reasonable time
How to know if a term materially alters the contract (under the UCC battle of the forms)
If it fails the surprise test or the hardship test
Surprise Test
Not common, not usual, not normal
Hardship Test
significant financial burden
When do different terms become a part of the contract via the battle of the forms rule?
apply the knockout rule and replace with UCC gap-filler terms
Last Shot Rule
Courts prefer the Battle of the Forms Rule; the Last Shot Rule is disfavored
a. Mainly appears as answer choice to multiple choice question AND has always been wrong bc law disfavors
How to determine gap-filler terms under the UCC battle of the forms
survey or marketplace
OR
expert testimony
