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Author Topic: Last Shot Rule?  (Read 15371 times)

jumpman23

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Last Shot Rule?
« on: November 28, 2008, 02:47:34 PM »
I am currently having some difficulty w/ the last shot rule and the battle of the forms? 

If someone would be so gracious and offer an explanation for these terms. 

goaliechica

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Re: Last Shot Rule?
« Reply #1 on: November 28, 2008, 03:22:40 PM »
-"Last Shot" rule means that the last version of the offer is the one that goes into effect (because the acceptance must mirror the offer—Mirror Image Rule—and each new set of terms is a "counter offer" that wipes out the initial offer).

- This 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."

Basically when you are going back and forth and negotiating what the details of the contract will be, the last form wins, because it wipes out all the previous offers. This encourages parties to a negotiation to send slightly tweaked forms back and forth endlessly so that they get the last word, and their terms are accepted.

UCC 2-207 is supposed to help fix this problem.
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Eugene Young

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Re: Last Shot Rule?
« Reply #2 on: November 28, 2008, 04:43:32 PM »
-"Last Shot" rule means that the last version of the offer is the one that goes into effect (because the acceptance must mirror the offer—Mirror Image Rule—and each new set of terms is a "counter offer" that wipes out the initial offer).

- This 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."

Basically when you are going back and forth and negotiating what the details of the contract will be, the last form wins, because it wipes out all the previous offers. This encourages parties to a negotiation to send slightly tweaked forms back and forth endlessly so that they get the last word, and their terms are accepted.

UCC 2-207 is supposed to help fix this problem.


Not exactly. New terms in acceptance are considered as proposals for addition to the K. B/W merchants they become part of the K  unless new terms materially alters it, acceptance made expressly conditional to assent to new terms, or notification of objection to new terms already given or a timely objection is made. Look at 2-207(2) and (3) and the official comments for exact details.

goaliechica

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Re: Last Shot Rule?
« Reply #3 on: November 28, 2008, 04:45:20 PM »
-"Last Shot" rule means that the last version of the offer is the one that goes into effect (because the acceptance must mirror the offer—Mirror Image Rule—and each new set of terms is a "counter offer" that wipes out the initial offer).

- This 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."

Basically when you are going back and forth and negotiating what the details of the contract will be, the last form wins, because it wipes out all the previous offers. This encourages parties to a negotiation to send slightly tweaked forms back and forth endlessly so that they get the last word, and their terms are accepted.

UCC 2-207 is supposed to help fix this problem.


Not exactly. New terms in acceptance are considered as proposals for addition to the K. B/W merchants they become part of the K  unless new terms materially alters it, acceptance made expressly conditional to assent to new terms, or notification of objection to new terms already given or a timely objection is made. Look at 2-207(2) and (3) and the official comments for exact details.

This is the old last shot rule, which 2-207 was meant to ameliorate. You have to understand the last shot rule and the battle of the forms and the way it used to work to understand what 2-207 is meant to fix.

ETA: I didn't include an explanation of the way UCC 2-207 functions, because that didn't seem to be what the OP was asking. 2-207 essentially does away with the last shot rule. Perhaps I should have explained that in order to be more clear.
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jumpman23

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Re: Last Shot Rule?
« Reply #4 on: November 28, 2008, 04:48:40 PM »
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. 

Changed Name

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Re: Last Shot Rule?
« Reply #5 on: November 28, 2008, 04:50:06 PM »
-"Last Shot" rule means that the last version of the offer is the one that goes into effect (because the acceptance must mirror the offer—Mirror Image Rule—and each new set of terms is a "counter offer" that wipes out the initial offer).

- This 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."

Basically when you are going back and forth and negotiating what the details of the contract will be, the last form wins, because it wipes out all the previous offers. This encourages parties to a negotiation to send slightly tweaked forms back and forth endlessly so that they get the last word, and their terms are accepted.

UCC 2-207 is supposed to help fix this problem.


Not exactly. New terms in acceptance are considered as proposals for addition to the K. B/W merchants they become part of the K  unless new terms materially alters it, acceptance made expressly conditional to assent to new terms, or notification of objection to new terms already given or a timely objection is made. Look at 2-207(2) and (3) and the official comments for exact details.

Well, there's also a distinction between "different" and "additional" terms which you need to be aware of when applying 2-207(2).  "Different" terms do not get added.  "Additional" terms get added unless they meet three criteria.  (This has to be between merchants.)

If not between merchants, the "additional" or "different" terms are not added at all.

If 2-207(1) does not apply (for whatever reasons, including:  there was no "acceptance"; the acceptance was conditioned expressly on a term; etc.), then you have to look to apply 2-207(3).

goaliechica

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Re: Last Shot Rule?
« Reply #6 on: November 28, 2008, 04:50:55 PM »
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.
              Roto-Lith.
            - 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
                  2-207(2).
            - UCC 2-207(2)
                - Between merchants, new and additional forms become
                  part of the contract - sum of the two contracts.
                - Exceptions:
                    - (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
              sum).
            - 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.

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Changed Name

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Re: Last Shot Rule?
« Reply #7 on: November 28, 2008, 04:51:59 PM »
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. 

2-207 curbs that Common Law problem because it doesn't automatically add the terms of the "last shot" communication.  (It may add terms but they have to satisfy some harsh criteria.)  

Ping S

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Re: Last Shot Rule?
« Reply #8 on: May 31, 2009, 03:37:44 AM »
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? 

Ninja1

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Re: Last Shot Rule?
« Reply #9 on: May 31, 2009, 03:59:01 AM »
Last Shot and Battle of The Forms are pretty much how everything here gets settled.

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