UCC BOF (2-207)

Question 1

2-207(1)

Answer 1

(1) A definite and seasonable expression of accept. or a written confirm. sent w/i a rsbnl. amnt. of time is an accept. even tho it states diff. terms from the one’s offered or agreed upon, unless accept. is expressly made cond. on assent to the diff. terms.
- UCC rejects mirror image rule by allowing a comm. to act as accept. even tho it incl. diff. terms. (ACCEPTANCE)
- Comm. will not be an accept. (assuming intent to contract) if it incl. lang. req. the other party expressly agree to the diff. terms before accept. occurs. (CONDITIONAL/QUALIFIED ACCEPTANCE)
- Lang. after comma (…upon, unless…) prevents a communication that would normally be an accept. from being an accept. by including the “magic” words of “acceptance is expressly made conditional on assent to the additional or different terms”
- Dets. when a writing with diff. terms constitutes acceptance
- MAGIC LANGUAGE: If a purported accept. incl. diff. terms and the req. for express assent, only way K forms is if:
1. The party expressly assents to the diff. terms (K is made thru docs.); OR
2. Through expression of assent (NOT THE DOCUMENTS) that shows a contract exists.

Question 2

2-207 (2)

Answer 2

(2) The add. terms are to be construed as proposals for addition to the K. Btwn merchants such terms become part of the K unless:
(a) The offer expressly limits accept. to the terms of the offer (you can only accept what is written in front of you);
(b) They materially alter it (surprise or hardship); or
(c) Notification of objection to them has already been given or is given within a rsnble. time after notice of them is received (already said no or said no w/i rsnbl. amt. of time).
- If the writings do not contain the express req. for assent to diff. terms (§ 2-207(1)), then a court will look at § 2-207(2) to det. the terms of the K.
- Then the Court will ask if both parties are merchants.
- –If no, then any diff. term(s) will be a proposal and will not become part of the K w/o assent from both parties.
- –If yes, do any exceptions from § 2-207(2)(a-c) apply?

Question 3

§ 2-207 (3)

Answer 3

(3) Conduct by both parties recog. exist. of a K is suff. to est. a K altho the writings of the parties do not est. a K. In such case, the terms of the particular K consist of those terms on which the writings of the parties agree, together with any supplementary terms incorp. under any other provisions of this Act.
- Dets. the sit. when the parties’ writings do not reflect that a K has been formed but performance reflects that they have entered a K. (KNOCKOUT RULE)

Question 4

California Rule

Answer 4

a. The California rule refers to those jurisdictions which find no difference between “additional” and “different” in §2-207(2).
- As a result, materially alters the contract and they never make it in

b. Non-California rule jurisdictions apply the rules in §2-207(2) only if the conflicting terms are “additional” as opposed to “different” terms.
c. Valtrol Inc v. General Connectors Corp. 884 F.2d 149 (4th Cir. 1989) follows the minority non-California rule.
d. Mace Industries v. Paddock Pool Equip. Co. , 339 S.E.2d 527 (S.C.App 1986) limits discussion to only “additional” terms.