Ucc § 2-207 Cases

Front 1

Dorton v. Collins & Aikman Corp.

UCC § 2-207 was intended to apply to two situations.

Back 1

§ 2-207; Dorton v. Collins & Aikman Corp.: Exceptions to the mirror image rule; modern day business transactions. An acceptance which proposes additional terms in response to an offer will be an enforceable contract including the new terms unless the additional terms materially alter the offer.

The UCC § 2-207 was intended to apply to two situations:

1) The one where an agreement has been reached either orally or by informal correspondence between the parties and is followed by one or both of the parties sending formal acknowledgments or memoranda embodying the terms so far as agreed upon and adding terms not discussed.

2) The other situation is one in which a wire or letter expressed and intended as the closing or confirmation of an agreement adds further minor suggestions or proposals such as 'ship by Tuesday,' 'rush,' 'ship draft against bill of lading inspection allowed,' or the like.

Front 2

KLOCEK v. GATEWAY

Back 2

In the box conditions and agreements-gateway loses. Because P is not a merchant, P has to expressly agree to the additional terms for them to become a part of the contract. The court found that the five-day acceptance of terms did not constitute express agreement by P.
The court holds that the arbitration provision did not become part of the contract because P did not expressly agree to the terms.

Under UCC § 2-207 a shrink wrap license does not apply if there is insufficient evidence of notice of and assent to shrink wrap terms at the time of purchase.

Here the court finds for P holding that the arbitration clause never became part of the contract under the application of 2-207. Under typical consumer contracts, the purchaser is the offeror and the vender is the offeree. Gateway accepted the offer by shipping its unit under 2-206(b). Because the offer is formed, Gateway's Standard Terms were either an expression of acceptance or a written confirmation. Thus, the terms were proposals for additional or different terms. There was nothing which showed that Gateway made its acceptance conditional upon the buyer's assent and because the buyer was not a merchant the terms did not become part of the contract unless expressly agreed to.

Front 3

Hill v. Gateway

Back 3

In box conditions and agreements-gateway wins.

ProCD, Inc. v. Zeidenberg holds that terms inside the box of software bind consumers who use the software after an opportunity to read the terms and to reject them by returning the product…Gateway shipped computers with the same sort of accept or return offer ProCD made to users of its software.

The contract was only formed when Hill kept the computer for 30 days, thus making the arbitration clause part of the contract. As in Pro CD the court rejects 2-207 as playing a role as there was only one set of documents.