Monday, December 3, 2012

Battle of the Forms: A Quick and Easy Approach

The UCC has abandoned the common law "mirror image rule," and, as such, additional terms stated in the acceptance (terms not mentioned in the offer) can become a part of the contract under certain circumstances. The following approach can be helpful in analyzing these issues:

First ask:

(1) Are the parties to the contract merchants? If not, then apply the common law rule requiring the acceptance to mirror the offer, and only the terms of the offer will be included in the contract.

If the parties are merchants, then ask:

(2) Do the additional terms in the acceptance materially alter the terms of the offer? If yes, then the terms will not be included in the contract.

If the additional terms do not materially alter the terms of the offer, then ask:

(3) Did the offer expressly limit acceptance to the offeror's terms? If yes, then any additional terms will not be included in the contract.

If the offer did not expressly limit acceptance to the offeror's terms, then ask:

(4) Did the offeror object to the additional terms within a reasonable time. If yes, then the additional terms will not be included in the contract.

If the offeror did not object to the additional terms within a reasonable time, then the additional terms will become a part of the contract.


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