OFFER

1. UCC 2-207-”Battle of the Forms” OFFER ACCEPTANCE NO ACCEPTANCE Seasonable & Definite Expression of Acceptance With Different or Additional Terms COUNTER OFFER REJECTION 2-207(2) 2-207(1) BETWEEN MERCHANTS NOT BETWEEN MERCHANTS • Expressly Conditional Response • Needs to have clear language • Not a Seasonable Response • Party waited too long • Not a Definite Expression NO K FORMED Additional/Different Terms do NOT come in UNLESS: Expressly Consented to • Additional Terms, Come In Unless: • Offer Expressly Limits Acceptance to its terms. • Terms Materially Alter Offer • See Comments 4 & 5 in book • Generally a term will materially alter the K • Reasonable Notice of Objection Given No Acceptance or Performance Clear Manifest of acceptance by Offeror No acceptance but performance (conduct) • Different Terms-Three Approaches: • Different terms in acceptance are disregarded, terms of offer remain • “Fall out rule” • Conflicting terms in offer & accept. cancel each other out • “knock-out” rule • UCC Gap Fillers Apply • Treat like additional terms above • Means they will probably fall out, because they materially alter the term • Or because notice of objective has already been given by presence of • conflicting terms in the offer. NO K K on Offeree’s Term • K under 2-207(3) • Terms that agree come in • UCC Gap Fillers for the rest • Written Confirmation (after an oral K): • If both parties send written Confirmations, K includes: • Orally agreed upon terms • Terms in agreement in confirmations (diff. terms are knocked out) • UCC Gap Fillers • If only one confirmation sent, or additional terms • Use 2-207(2) analysis for additional terms Examples of Express Conditional language: “any additional/different terms are expressly objected to”