UCC Ts & Cs

Question 1

Substantive Elements of a K

Answer 1

The WHAT

i. Disclaimers
ii. Warranties
iii. Limitations of liability
iv. Indemnification

Question 2

Procedural

Answer 2

The HOW

Can you seek a remedy or redress by:

1. Choice of Law
2. Arbitration
3. Mediation

Question 3

Shrinkwrap Contracts

Answer 3

AKA: rolling K, layered K or “money now, terms later” K.

Buyer can inspect and review the 
T&C and then:
-The Buyer can return for a refund 
within a deadline if Buyer does not 
agree.
-If Buyer does not return product w/i 
deadline he has accepted the terms.

Question 4

ProCD & Hill (Majority)

Answer 4

1. Buyer INVITES OFFER from seller
2. Seller MAKES OFFER by shipping with Ts&Cs in box
3. Buyer is invited to manifest assent (i.e. accept) by keeping the goods under Seller’s terms

• So 2-207 doesn’t apply b/c no “battle,” just one form from the seller
• So 2-204 & 2-206 is in Seller’s court b/c they can set limitation on what/how accept. is made but Seller must inform Buyer of right to reject w/i a reasonable time or accept thru retention of goods.

Question 5

Step-Saver Klocek (Minority)

Answer 5

1. Customer MADE OFFER when ordering.
2. Seller ACCEPTED by charging credit card and shipping.
3. Contract is formed and an add. term is included in accept.
   - So 2-207 applies and new terms that Seller attempts to add is either:
4. A proposal under 2-207(2); or
5. A modification under 2-209

• But either way, proposal is not added unless term is assented to.

Question 6

ProCD Majority View UCC Lens

Answer 6

i. §2-207: No actual battle exists because there is only 1 form from Seller to Buyer with 1 set of terms.
ii. §2-204/6: Seller can invite acceptance by conduct and set limitations on what/how acceptance is made, i.e. a Buyer can accept by performing:
iii. BUT Seller must inform Buyer of right to reject within a reasonable time or accept through retention of goods.

Question 7

Klocek Minority View UCC Lens

Answer 7

i. §2-207: BOF applies and the new term that Seller attempts to add in computer packaging is either:
ii. A proposed new term under §2-207(2) or
iii. A modification under §2-209
iv. Either way, customer is non-merchant (consumer) so not included w/o assent.

Question 8

Clickwrap Contracts

Answer 8

i. Before purchase on the Internet, a Buyer must click “I Agree” or “Submit” or something else that reflects that the Buyer has scrolled through and seen the Seller’s T&C.
ii. Click wrap purchases at stores (in person) may be software within a shrink wrap contract (the software agreement for software pre-installed on a computer).

Question 9

Browsewrap Contracts

Answer 9

i. Allow users to browse or use websites.
ii. They must agree to T&C or user terms which:
iii. Are contained in a link to T&C.
iv. Assent is given by simply staying on website.
v. Active assent by clicking a button is not necessarily needed.

Question 10

Key UCC Questions

Answer 10

Has a contract been formed?

1. Is mutual assent present?
2. Has the offer been accepted?

Assuming a contract has been formed, what were the terms of the contract?

1. Are there competing forms?
2. Is there a requirement for express assent to additional or different terms in acceptance?
3. Did the parties perform?
4. Are both parties merchants?
5. Does the offer expressly limit acceptance to the terms of the offer?
6. Does the proposed term materially alter the agreement?
7. Did the offeror object to the additional term within a reasonable time?
8. Did the consumer agree to the proposed term?
9. Do the competing forms knock out non-matching provisions?