UCC 2-207 HELP!!!!

[gcoswaltiii]

PLEASE HELP!!!  I am so lost and digging myself a deeper hole...

You have a contract between two merchants.  The original offer contains the proviso (express limits acceptance to the terms of the offer) and the offeree acceptance is expressly made conditional on ascent to additional or different terms.  Whose terms would apply after performance??

Thanks...

[Jumboshrimps]

PLEASE HELP!!!  I am so lost and digging myself a deeper hole...

You have a contract between two merchants.  The original offer contains the proviso (express limits acceptance to the terms of the offer) and the offeree acceptance is expressly made conditional on ascent to additional or different terms.  Whose terms would apply after performance??

Thanks...

The offeree's "acceptance" is not an acceptance under 2-207(1) because the offeror has exercised his power to make acceptance expressly limited to the terms of the offer. Offeree's acceptance does not match the offer. In effect, the offeree has implemented the common law "mirror image rule," as it is his right to do.

If performance has occured at this point, there is no written contract. This is where 2-207(3) comes in. The contract now consists of any terms the parties have agreed upon (none, according to these limited facts) and all the "gap-filler" provisions of the UCC, such as 2-709, which allows the recovery of consequential damages in case of breach.

2-207(2) is irrelevant to this hypo.


 

[gcoswaltiii]

YOU ARE MY HERO!!!  THANK YOU FOR YOUR HELP!!!

[T. Durden]

given that we are dealing with goods here UCC 2-207 should apply - i was under the impression that non-material additional terms may be added under the UCC 2-207 irrespective of express assent if there is performance?

of course the knock out rule applies to different terms and material additioanl terms (as defined by surprise and hardship)

does this sound right?

[scottxmacdougall]

The way courts have generally interpreted 2-207 and "the offeree's acceptance is expressly made conditional on assent to additional or different terms" is that only those exact words will act as a rejection of the offer. If you have anything less, no matter how close it may be, the courts will generally construe it as an additional term (Courts love to uphold the creation of a contract). You may still have a definite and seasonal expression of acceptance.

So depending on what the language is you may either go to subsection 2 or 3 (if there is conduct that resembles a contract).

If the language deviates from "acceptance made conditional" run through a subsection 2 analysis.

If the language is exact and yet there is a delivery and acceptance of the materials then you go to subsection 3.
   The contract consists of those terms on which the writings of the parties agree.
       If you haven’t agreed to it, its not in the contract; and therefore the terms would be thrown out.
 
   I don't know if you have discussed the last shot theory in your class, but it might be worthwhile to mention   
   it.

Since its a creation of a law school professor, chances are he/she made it as ambiguous as possible so you have to argue both the subection 2 and 3 routes.

[dft]

my K's prof doesn't teach so i don't know the answer here.

tagging this thread for later. hopefully ill understand it by next week when i have my k's exam.

[Jumboshrimps]

given that we are dealing with goods here UCC 2-207 should apply - i was under the impression that non-material additional terms may be added under the UCC 2-207 irrespective of express assent if there is performance?

of course the knock out rule applies to different terms and material additioanl terms (as defined by surprise and hardship)

does this sound right?

Performance isn't part of the additional/different terms analysis. Between merchants the terms are part of the K unless material alterations. In the OP's hypo, however, there is no acceptance in the first place (see scott's post, though), therefore no contract. NOW performance is important, because the court has to figure out what governs the transaction in the absence of a contract when the crap inevitably hits the fan. Enter 2-207(3), which supplies bare-bones terms in the absence of express ones.

Policy: keep business flowing. Prevent hiccups in the flow of goods and money because our society values commerce very highly. The UCC is a reflection of this value, and its adoption by all the states speaks to its importance.

[T. Durden]

yeah that makes sense - as the proviso stated an express assent requirement then there can be no K in the absence of such assent. what if both parties ignored this assent req. and performed anyway only to have a dispute arise later? would you then say that we would now be dealing with a UCC 2-202 integration / interpretation issue using course of performance, course of dealings, and trade usage to determine the obligations of the parties? (given that we are dealing with goods here ...)

[Jumboshrimps]

yeah that makes sense - as the proviso stated an express assent requirement then there can be no K in the absence of such assent. what if both parties ignored this assent req. and performed anyway only to have a dispute arise later? would you then say that we would now be dealing with a UCC 2-202 integration / interpretation issue using course of performance, course of dealings, and trade usage to determine the obligations of the parties? (given that we are dealing with goods here ...)

This is exactly the situation in the hypo. The parties have ignored the assent requirement(s) and performed anyways. And we wouldn't have the problem unless a dispute had arisen.

UCC 2-202 applies to a written agreement. We don't have one. (again, I think scott's point about courts seeing this otherwise is worth exploration). But, there are other provisions of the UCC that do come into play when we apply 2-207(3). 2-719 concerning damages is the only one I know offhand.

[T. Durden]

so if 2-202 can't apply then it remains strictly a 2-207 issue: in which case if there was no express assent the different term or material additional term does not become K (irrespective of the corresponding performance yeah?)

though i'm a little confused as to why 2-202 is necessarily precluded here - any ideas?