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Author Topic: Last Shot Rule?  (Read 15679 times)

MUCH WILL BE ASKED

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Re: Last Shot Rule?
« Reply #10 on: July 22, 2009, 06:58:16 PM »
I came across this topic while wondering which UCC Section applied to the following set of facts:
Merchant A (Seller) sends a quote to Merchant B (Buyer) for widgets at .50 each.
Merchant B sends Merchant A a purchase order for widgets at .55 each.
Merchant A ships the widgets, these are received and accepted by Merchant B.
Merchant A sends an invoice to Merchant B, charging Merchant B the rate of .55 per widget.
Merchant B then asserts that Merchant A should have invoiced Merchant B at the rate of .50 per widgets, given that .50 per widget was what Merchant A quoted Merchant B.

Which term is correct .50 or .55? and which UCC section applies, if at all? or should I be looking else where instead of the UCC? 

I little late but here's my attempt.

Seller send quote for .50 (OFFER)

Buyer sends purchase order for .55 (I would say that this is a 'different' term which materially alters this contract and depending on the court they may treat it has 'additional' and say it creates a counteroffer. 2.206(2) doesn't deal with the term 'different' so courts are split on the application

Seller ships and buyer accepts (I would say that this is an acceptance of the buyers counteroffer of .55.) But unlike common law, A's acceptance of the counteroffer must be clear (s/he must know what s/he is accepting/ and agreeing to this new price). In common law it would only be enough that s/he performed.

Seller followes delivery with an invoice for .55 ( this might clarify the 'clear acceptance' issue above) This invoice may be enough to say, hey, I accepted you counter off at .55. If the courts feel these writings are not enough to create a contract "meeting of the minds" (if you agree with the phrase) the courts will look at CONDUCT so then you apply 2.207(3)

Under 2.207(3) way may conclude that a contract does exist and the term of this contract are based on everything the writings agree on and anything that conflicts (such as price) will be replaced by "gap fillers" (as some call it). Most notably, the court may impose section 2-305's reasonable price gap filler.

This buyer may try to argue mistake and seek to be discharged from this contract but I would say this is unlikely. The buyer in this case was quite negligent in offering more than she needed to pay and most courts will not allow this person to escape, especially due to her negligence (assuming the other elements are met). 




TULANE 2012

johnadams

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Re: Last Shot Rule?
« Reply #11 on: July 22, 2009, 07:05:49 PM »
0L fail

Eugene Young

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Re: Last Shot Rule?
« Reply #12 on: August 09, 2009, 01:32:28 PM »