Mutual Assent- UCC

Question 1

U.C.C. 2-204(3). Formation in General.

Answer 1

1. If parties intend to form a contract, and there is a reasonably certain basis for a remedy for breach, then a contract can move forward even if certain terms are left open.

Question 2

U.C.C. 2-305. Open Price Term

Answer 2

1. Parties can enter into a contract if price isn’t settled
   upon by recognizing the dominant intention to have the deal continue to be binding. Price will be deemed reasonable if nothing is mentioned about it at the time of delivery, if the price is deemed to be market standard, and if the price was fixed by the seller in good faith.

Question 3

Mutual Assent Under U.C.C. Article 2.

General Rule:

Answer 3

Unless the contract language or circumstances unambiguously
indicate otherwise, acceptance may be made in any manner and by any medium reasonable under the circumstances.

Question 4

The UCC rejects Mirror Image Rule and recognizes a binding contract despite the presence of nonconforming acceptance in two situations:

Answer 4

a. The shipment of nonconforming goods
b. “Battle of the forms”

Question 5

Seller’s Shipment of Conforming and Nonconforming Goods

Answer 5

i. Under UCC, a seller can accept a buyer’s offer to purchase goods for prompt or current shipment in one of three ways:
1. A promise to ship goods in conformity with the terms of the offer, such as an acknowledgement of order form sent to the buyer;
2. A prompt or current shipment of the goods in conformity with the terms of the offer; or
3. The seller can also accept the buyer’s offer by shipping nonconforming goods.
4. The shipment constitutes a valid acceptance and creates a binding contract between the parties.

Question 6

EXCEPTION: Seller’s Shipment of Conforming and Nonconforming Goods

Answer 6

If the seller notifies the buyer that the shipment is offered only as an “accommodation” to the buyer, the shipment of nonconforming goods will not constitute as a binding agreement, but rather as a counter offer, which the buyer can accept or reject.

Question 7

U.C.C. Article 2-205. Firm Offers

Requirements:

Answer 7

1. An offer;
2. By a merchant;
   a. A person, corporation or other entity;
   b. Who either:
   i. Deals in such goods or
   ii. By his occupation presents himself as
   having knowledge or skills particular to
   the field or
   iii. By his employment of others who have
   knowledge or skills particular to his field
3. Contains assurance that it will be held open; and
4. Those assurances are signed in writing and
5. If the assurances are on a form supplied by the offeree,
   the assurances are separately signed by the offeror and
6. There’s no additional requirement of consideration

Question 8

Effect of being a firm offer: Offer is Irrevocable

Answer 8

1. For a time stated or
2. A reasonable time if no time is stated
3. Up to a maximum of 3 months.

Question 9

U.C.C. Article 2-207. Additional Terms in Acceptance or Confirmation

Answer 9

i. If the offeree tells the offeror that they are unwilling to go forward with contract unless they agree to additional terms COUNTER-OFFERCONDITIONAL ACCEPTANCE
1. If performedEnforceable contract including agreed-upon terms.
2. If expressed consentEnforceable contract with new terms assented to.
3. If not performed or rejectedNo contract.

ii. If the acceptance is not conditionalAcceptance with
additional terms.
1. If expressed consentEnforceable contract with
additional terms.
2. If no expressed consentLook for four requirements:
a. If the offer limits acceptance to its terms (no additional terms)
b. If the additional terms in the acceptance constitute a “material” alteration
c. Has there been an objection by the offeror in a reasonable time
d. Both parties are not merchants.
i. If yes Additional terms do not become
part of the contract contract only with
original terms
ii. If noNew contract with additional TERMS

Question 10

Additional Terms under §2-207

Additional terms become part of the contract unless:

Answer 10

1. The offer expressly limits acceptance to the terms of the
   offer;
2. The offeror objects to the additional terms within a
   reasonable time after receiving notice of them; or
3. The additional terms would materially alter the
   contract.

Question 11

Shrinkwrap Agreements

Answer 11

Some courts apply 2-207 to conclude that boilerplate
terms in shrinkwrap agreements are proposals for additions to the contract, following the usual rules governing transactions that are not “between merchants”.
2. Other courts have held that 2-207 does not apply and that the consumers’ retention and use of the goods constitute an acceptance of the shrinkwrap terms.