I understand the common law rule w/ regard to the last shot rule. A party's lack of objection to a counter-offer constitutes an implied assent and thus an acceptance. However, U.C.C. 2-207 seems more problematic.
Okay, so you're asking how 2-207 works, not actually about what the Last Shot rule is?
Here is how I conceptualized it:
- General Rule: A counter-offer wipes out the original offer -
Restatement § 39. Minneapolis & St. Louis Railway Co. - purchase of
tons of rails - change of terms creates counter-offer, no K.
- Exception/Modern Rule: The acceptance can change or add terms
without necessarily becoming a counter-offer. Ways to "walk
around" mirror rule.
- Is there a contract? Test:
- Is there a perfect match between offer and acceptance? If
so, then yes.
- If not, Restatement § 61
- An acceptance which requests ("mere inquiry") a
change or addition to the terms of the offer does not
wipe out original offer unless the acceptance depends
on the changed terms (but you still run the risk of
being considered a counter-offer).
- If not, UCC §2-207(1)
- An acceptance is not a counter-offer, even though it
states terms additional to or different from those
offered, unless acceptance is expressly made
conditional on assent to the new terms.
- If there is a contract, what are the terms of the contract?
- If the acceptance became a counter-offer: if the goods
are accepted, or other conduct indicates acceptance of
counter-offer, the terms of the counter-offer control.
- Mirror image rule creates bias in favor of the last form
- encourages people to send more forms trying to have the
last word - leads to Battle of the Forms.
- Leonard Pevar Co. v. Evans. - plywood purchase battle
of the forms - K depends on whether there is a
"material difference" in the terms, going by UCC
- UCC 2-207(2)
- Between merchants, new and additional forms become
part of the contract - sum of the two contracts.
- (a) The offer expressly limits acceptance to the
terms of the offer.
- (b) They materially alter it - "objective" test
of this is whether there is "surprise or
hardship" for the first party.
- (c) Notification of objection to them has already
been given or is given within a reasonable time -
"subjective," but dependent on behavior (you have
to actively object).
- If (1) and (2) do not apply ----> UCC 2-207(3)
- Comes into play when 2-207(1) is not helpful. Answers
both questions: Is there K? What are the terms?
- Look for "conduct" indicating there might be a K.
- Test: Conduct by both parties which recognizes existence
of contract is sufficient to establish K. The terms will
be whatever is in agreement in both writings (NOT the
- Knock-out rule. If terms are different and can't be
reconciled, they cancel each other out, and we go to
gap-filler or default.
- There has been a proposal to reform 2-207 by enacting a
huge knockout rule for any difference between K's.