Battle of the Forms

• Author: autor
• Pages: 44-61

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Chapter 4. Battle of the Forms

4.1. Introduction.

4.1.1. In today’s business world, buyers and sellers have developed standardized forms to

use when offering to sell goods and when accepting an offer to buy goods. These forms

typically have blank spaces to fill in for “material” or “dickered” terms, such as the type

of good, quantity, price, and delivery date. These standardized forms also contain many

paragraphs, even pages, of “fine print” or “boilerplate” terms, such as warranties,

exclusions of warranties, payment terms, remedies (or limitations of remedies), choice of

law, choice of forum, arbitration clauses, etc. UCC § 2-207 was designed to resolve the

issue of what terms govern when these forms contain terms that either contradict each

other (i.e., “different” terms), or when one form contains terms not addressed in the other

form (i.e., “additional” terms).

4.1.2. Another fairly common situation today is an oral agreement followed up by written

confirmations. For example, a law student calls Computer Warehouse to order a new

computer, specifying the model, quantity, and price. Computer Warehouse accepts the

order over the phone. When Computer Warehouse ships the computer, it sends along a

nine-page “written confirmation” of its acceptance that contains numerous terms, such as

warranties and choice of law clauses, none of which were discussed when the contract

was originally formed on the phone. UCC § 2-207 provides the framework for

determining whether the additional terms govern the transaction.

4.1.3. UCC § 2-207 is not a model of clarity. One commentator has this to say:

Section 2-207, if not the most complex section in the Code, is certainly among the

strong contenders. It is beset with awesome difficulties in its application and few,

if any Code commentators would presume to know all there is to know about this

troublesome section.

Thomas Quinn, Quinn’s Uniform Commercial Code Commentary and Law Digest §2-

207[A][1] (West 2d ed., 2002).

4.2. First Step: Work through Section 2-207(1) before the Comma. As discussed in Chapter

3, formation of a contract at common law requires “mirror” acceptance of the terms offered. An

acceptance cannot contradict terms contained in the original offer, nor add terms to those

originally proposed. Such an acceptance becomes a counter-offer, which the original offeror is

now free to accept or reject. The purpose of § 2-207 is to allow, in some circumstances, a

response to an offer that adds or varies terms of the original offer to nonetheless operate as an

acceptance, whereas under common law it would be construed as a counter-offer.

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4.2.1. Section 2-207(1) requires a communication that is either (i) a “definite and

seasonable expression of acceptance” or (ii) a “written confirmation” following an oral

agreement. Let’s start by analyzing what constitutes a “definite and seasonable expression

of acceptance.”

Problem 4-1. Office Supplies and MegaLawFirm have been talking about MegaLawFirm’s

purchase of a new Beerox 1000 copy machine. Office Supplies writes to MegaLawFirm. “We

offer to sell the Beerox 1000 copy machine to you upon the terms contained in the enclosed

purchase order form.” That form is reproduced below:

Date: January 10, 2014

Purchaser: MegaLawFirm

Description of Product: Beerox 1000 copy machine

Quantity: 1

Purchase Price: $16,000.00

Delivery Date: February 1, 2014

(1) MegaLawFirm responds to this offer as follows: “We acknowledge receipt of your

offer, and agree to enter into a contract upon the terms enclosed.” MegaLawFirm encloses

the following:

Date: January 11, 2014

Purchaser: MegaLawFirm

Description of Product: Beerox 1000 copy machine

Quantity: 1

Purchase Price: $15,000.00

Delivery Date: February 1, 2014

Is MegaLawFirm’s response a “definite and seasonable expression of acceptance” under

the UCC? Why or why not?

(2) What if MegaLawFirm had responded: “We accept your offer, upon the terms

enclosed.” MegaLawFirm encloses the following:

Date: January 11, 2014

Purchaser: MegaLawFirm

Description of Product: Beerox 1000 copy machine

Quantity: 1

Purchase Price: $16,000.00

Delivery: To be delivered by Office Supplies at its expense to the offices of

MegaLawFirm located at 100 Main Street, Missoula, Montana on February 1,

2014.