Temporary Card Set

Front 1

What is the big deal about UCC 2-207?

Back 1

It changes the mirror image rule so that even if some contract terms state different terms it can still be binding on the parties

Front 2

Under UCC 2-207, what does "definite expression of acceptance" mean?

Back 2

UCC 2-207(1) leaves the precise definition open. However, offeree's reponse must purpose to be an acceptance. However, because of the change to the mirror image rule, just because a response deviates in some way - even a material way - does not mean it isn't an acceptance. Terms like subject matter, price, or quantity would probably not be binding.

Front 3

What are two examples under "definite expression of acceptance" under UCC 2-207?

Back 3

1) Two merchants agree on price, qty, items but one adds a arbitration clause. This would be a "definite expression". 2) A request asks for delivery on Apr 1 and the response is Feb 1, this would not be binding.

Front 4

What does "expressly made conditional" under UCC 2-207 mean?

Back 4

It means that any additional terms must be accepted before contract formation.

Front 5

Is it binding if there is a term "expressly made conditional" under UCC 2-207 and the parties begin performing?

Back 5

Yes. This would be binding because provision 2-207(3) provides for it, "conduct of both parties..."

Front 6

What happens to the terms of contract when they "expressly made conditional" under UCC 2-207 and the parties begin performing without express acceptance?

Back 6

Then typically only the filled in, individualized sections will be enforced and preprinted provisions that do not agree will drop out. Example: we both agree on price, quantity, and item but add provisions that need to be expressly accepted but ignore that and ship and accept. Then court will only enforce terms that match up.

Front 7

How do you know if a term that you think is "expressly conditional" under UCC 2-207 actually is?

Back 7

Generally, you need to track the language of Article 2 closely.

Front 8

What is the key distinction in looking at additional preprinted terms between parties?

Back 8

Whether the terms added added or different ("contradictory")

Front 9

Under UCC 2-207, if there are additional terms and both parties are merchants, what happens (3 points)

Back 9

The additional terms become part of the contract UNLESS: 1) the offer expressly limits accptance to the terms of the offer; 2) the additional terms would materially alter the contract or 3) the offeror notifies offeree of objection within a reasonable time.

Front 10

What is a "merchant" under UCC (2-104)?

Back 10

A person who deals in the kind of goods involved or who otherwise holds herself out as having knowledge or skill in the trade

Front 11

What are three examples of the additional terms rule under 2-207?

Back 11

1) nonmerchant offers to buy widgets from merchant, merchant replies with sales order that adds terms, these terms are optional for nonmerchant; 2) if both are merchants and nobody objects, then these are generally binding BUT 3) if both are merchants and one adds a disclaimer on warranties, then this is not part of the contract because it would materially change its nature.

Front 12

What are the three broad rules when terms are different under 2-207?

Back 12

1) majority view: knockout the terms; 2) different terms are treated like additional terms; 3) different terms always drop out

Front 13

What is the "knockout" rule under UCC 2-207?

Back 13

Different terms do not become part of the agreement, but the negate -- knock out -- those terms in the offer from which they differe.

Front 14

What is the "different terms treated like additional terms" rule under UCC 2-207?

Back 14

This is a minority rule. It says that the additional terms will become part of the agreement subject to the 3 additional term limitations under UCC 2-207

Front 15

What is the "different terms always drop out" rule under UCC 2-207?

Back 15

Like the "different terms treated like additional terms" this rule is a minority one. It reads UCC 2-207 as saying that it is only additive so any terms that conflict should just disappear.