Winkys Contracts

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mutual assent tentative guide

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a definite, conditional promise manifesting offeror’s present intent to enter a binding final agreement

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Requirements for an offer

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i. The proposal must be a conditional promise
ii. The proposal must look to a binding agreement
iii. Manifestation of present contractual intent to enter into a final agreement
iv. Certainty and definiteness

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(1) Must be a conditional promise

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i. It must request something (a promise, performance) which if given, will crystallize the K
ii. “I” as opposed to “you”

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(2) Must look to a binding agreement

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i. Actual intent: parties must have desire that the terms be legally enforced
1. Can be outward manifestation
2. Look at seriousness of parties both objectively and subjectively
ii. Interpretative intent: rebuttable presumption; ex: parents discussing child’s allowance is not a K because they weren’t looking to form a K that would be legally enforceable

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(3) Manifestation of present contractual intent to enter into a final agreement

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i. (1) Precise wording (*key)
ii. (2) Surrounding circumstances considered
iii. (3) Definiteness of terms (*key)
iv. (4) Size of group addressed
v. (5) Contemplation of the subsequent execution of formal writing

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Specific recurring fact situations

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1. Negotiations with multiple persons (Harvey)
2. Preliminary negotiations (Fairmount)
3. Agreements to agree (Walker, Greene)
4. Ads (Craft, Lefkowitz)
5. Reference to later preparation of a writing (Dohrman, Massee)

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(4) Requirement of definiteness

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i. If you can show intent to enter and some definite terms, court will most likely enforce; the more definite you are, the stronger the inference that you intended to put an offer on the table
1. Courts like definiteness—it helps them find a K and helps them find remedy

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(4) Requirement of definiteness - CL standard

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ii. Common law

1. General standard: reasonable definiteness in the material terms; this promotes certainty
a. Just “reasonable” because must be tolerant of some informality due to speed of transactions and because gap-fillers are available
b. Walker: Renewal option provided “rental will be fixed in such amount as shall actually be agreed upon by the leaser and lessee.” Held: no K because only agreement to agree, lack of intent to enter into a final agreement. Policy here is that the courts will not impose price on parties. Also don’t want to burden court with this job.
c. Greene: Renewal option providing rent to “be agreed upon according to the business conditions at that time.” Held: K. Opposite conclusion of Walker because the definite terms are there—Court can come to a reasonable rental price using business conditions.

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Specific recurring problems

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a. Silence or a gap
b. A vague provision “liberal,” “good,” “equitable” (Lee 235)
c. The duration term in employment Ks
i. Cuts very close to fundamental value of freedom from involuntary servitude
ii. Can’t order Shaq to play for the Lakers for the year, but can order him not to play for other teams during the year
iii. Suppose the original agreement says, “$5000” a month for being a permanent employee: if employer reneged, plaintiff could claim the money for at least one month

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UCC definiteness approach

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iii. UCC has gap-filling provisions that cure indefiniteness (see §2-305, -308, -309, -310)
1. However, a quantity term is always necessary. Without it, there is a fatal gap that is too specific for the court to determine.
2. UCC seriously relaxes common law requirement of definiteness by requiring only reasonable definiteness (because it can turn to gap-fillers) (see §2-204(3), Southwest)
a. Not feasible to require more than reasonable definiteness
b. Don’t want to slow down the market with tons of contract-writing requirements
3. UCC will fill in “reasonable” price, time of delivery, delivery terms, duration, and time of payment if the parties are silent on these matters
a. Expert testimony often used for this
4. Provisions resolving common law splits of authority 2-305(1)(b), 2-306(1), 2-311(1)

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Ads and definiteness

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a. Look at distinction between Craft (norm) and Lefkowitz (exception)—specifically, words “first come, first served” that gave a definiteness

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Court standards if indefiniteness is found

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1. Court will apply realistic, current business standards.
a. Lee: Oral agreement made for a distributorship with vague terms. Held: K because the parties knew each other well and the ambiguity could be easily removed using extrinsic evidence.
2. Expert testimony used for common business practice
3. Can also read a reasonable community standard into an indefinite K.
4. In general, when a K is indefinite, look to the manifestation of intent and if it is found by the court, gaps are attempted to be filled with UCC
a. Except when the gap is quantity
b. Court is reluctant to fill in terms if
i. Requires value for vague or ambiguous terms
ii. Requires value to replace a term purposely left out for later mutual agreement
5. UCC radically relaxes common law standard
a. §2-204 is key. The remedy is fundamental, if it and intent can be found, the UCC will try to find in favor of a definite agreement when looking at silence on most terms
b. Even though one or more terms of a K are left open, a K does not fail if the parties intended to make a K and there’s a reasonably certain basis for giving an appropriate remedy.

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Ways to terminate an offer

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i. Death of offeror
ii. Death of offeree
iii. Destruction of the subject matter
iv. Lapse of time
v. Revocation
vi. Rejection
vii. Supervening illegality

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(1) Death of offeror (or supervening incapacity) (S/A)

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i. Majority: offer dies automatically without notice to the offeree
1. This is lingering subjective theory
2. May create problems if the offeree doesn’t get notice, he may still rely on good faith and injustice may result
ii. Minority (trend): offer terminates only when offeree knows or should have known

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(2) Death of offeree (or supervening incapacity) (S/A)

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i. Common law: automatic termination
ii. More defensible than death of offeror because the possibility of injustice is eliminated because the offeror has to wait for acceptance by the offeree

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(3) Destruction of subject matter

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i. Offer is automatically terminated

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(4) Lapse of time

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i. An offer can have an expressed duration; after the expiration of the duration it is terminated
ii. If no termination mentioned in the offer, it expires after a “reasonable” time
1. Face-to-face offer terminates when the conversation ends
2. The rule is generally to look to the market
a. The more volatile the subject matter of the K is on the market, the shorter duration the offer is open
3. The method of communication used can also be a factor (there is a difference if a fax or a letter is used).

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(4) Lapse of time - when does period begin?

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1. Often an offeror specifies a term, i.e., “good for 8 days” and the 8 days begin when the offeree receives the offer
2. If offer is delayed by mail and offeror has already called offeree to say “I’m going to send this by FedEx, it should be there soon, so the offer will end in 5 days,” and it takes longer than 5 days to arrive, court will probably say the 5 days began at phone call
3. Subsequent extension of time
a. Before the lapse of the original period:
i. If before the 5 days have passed, the offeror contacts offeree and gives two weeks instead, court will allow this (freedom of K)
ii. As long as offeror has intent to extend, does not have to be communicated to offeree
b. After the lapse of the original period
i. Offeror forms intent to renew the offer after it has died—has to recontact offeree and make the offer again—back to square one
ii. If offeree has waited past the period and then calls up to accept, he is making a counteroffer

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(5) Revocation by offeror

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i. There is a lax standard for finding a revocation, compared to the strict standard for making an offer. This goes back to policy: protecting economic freedom.
ii. Basic rule: offeror can revoke at any time before an acceptance and it’s effective at time of receipt

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(5) Revocation by offeror - direct revocation

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a. Hoover: P made offer to D for realty. Before D accepted, P said, “we might not want to go through with it.” Held: no K, words were sufficient to revoke the offer.
i. A wishy-washy revocation will suffice; all you need is a manifestation inconsistent with the intention to go forward
ii. This is the general rule for direct revocation
b. Revocation of ads
i. Must be clearly directed if specific people have been addressed
ii. If a large number of people are addressed (i.e. a newspaper), the revocation must take the same form as the offer (published in a similar mode for the same time period as the original offer)

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(5) Revocation by offeror - indirect revocation

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a. If offeree learns of offeror’s intent to revoke from a reliable source, it is sufficiently revoked—no need for a direct revocation from the offeror
i. Dickenson: P heard that D had sold property that D had offered to P. P tried to accept the offer by agent. Held: no K, D can revoke anytime before P’s acceptance and P had knowledge of D’s intent to revoke.
b. 5 elements for an indirect revocation
i. Offeree must hear of the revocation
ii. The source must be considered reliable by the offeree
iii. The tenor of the information given must destroy the offeree’s reasonable expectation
iv. The report must be given before the attempted acceptance
v. The revocation reported must be accurate and actual

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(5) Revocation by offeror - limitations

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1. Limitations have been progressively limited by the courts and legislatures. Most courts take the view that a revocation takes effect only when received by the offeree.

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(5) Revocation by offeror - limitations

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a. Option K supported by consideration
i. This is a promise that effectively limits the offeror’s power to revoke
ii. “I offer to sell you Greenacre for $10,000, I further offer that if you pay me $100 I shall not revoke the offer to sell you Greenacre by Friday, 9am.”
1. This has two distinct offers (to see Greenacre and not to revoke the offer for Greenacre). If the second condition is met, the ability of offeror to revoke before Friday 9am is gone
2. The remedy for a breach would be to money damages only
3. This is the structure of most option Ks
iii. “If you pay me $100 now, I offer to sell you Greenacre on the condition that you tender me a check for $10,000 before Friday 9am.”
1. If you put down the $100, a K for sale of land is made
2. The $10,000 is a condition, subsequent to the K formation
3. The remedy for a breach would be specific performance
iv. Option Ks are transferable, so it does more than give a power not to revoke
v. In most jurisdictions, an option K will override death of offeror/offeree, offeree’s rejection, offeror’s revocation

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(5) Revocation by offeror - limitations

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b. By seal: an antique from common law—not valid anymore; UCC has taken its place

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(5) Revocation by offeror - limitations - statutory substitutes

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c. Statutory substitutes for seal: UCC §2-205 (firm offers for merchants only, if a signed offer)
i. A layperson can’t make a firm offer. Must be a merchant who falls under the statute. If signed by a merchant there is assurance that it will not be revoked, even if no consideration. Offer good for no more than 3 months.

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(5) Revocation by offeror - limitations - part performance

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d. Part performance and unilateral Ks
i. Part performance and good faith reliance triggers an interest the law ought to protect
ii. Restatement §45
1. Only sufficient if offeror invites part performance
2. Offeror invites an offeree to accept by rendering performance and does not invite a promissory acceptance and the option K is created when the offeree tenders or begins the invited performance
a. Realistic approach; an offer is irrevocable if a substantial part performance is done, but the rest of the performance must be completed within a reasonable time
e. Also, a silent option K can be made out of an implied performance not to revoke once part performance is begun.
f. Marchiando: Real estate broker sues seller who revokes offer to buyer. Part performance would suffice if the broker had done act prior to revocation.

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(5) Revocation by offeror - limitations - PE

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3. Promissory estoppel
a. 4 elements to trigger this doctrine
i. D made promise
ii. D should have reasonably foreseen that P would rely on the promise
iii. P does rely on the promise and changes position
iv. Judge must characterize reliance as reasonable and substantial and find that it would be an injustice not to enforce the original promise of the D
b. Social policy: protects people who have acted in a substantial and detrimental way due to a reliance on a promise
i. Originated with charitable subscriptions
1. Hypo: A rich alumnus says he’ll donate $5 million to school to renovate. Chancellor draws up designs and hires workers and then alumnus withdraws his offer.
c. S/A in P.E. between charitable and business situations (Traynor and Hand)
4. Baird: L Hand refuses to extend P.E. to the marketplace. A subcontractor told contractor, “we are offering this price for prompt acceptance after the general contract has been awarded.” Contractor used the bid and was awarded, went to accept, but sub revoked. “Irrevocability” when contractor paid deposit. Held: no K, revocation before acceptance; reliance is of no relevance. If contractor really wanted to protect himself, should’ve written it into the K.
5. Drennan: Traynor will extend P.E. to business. Contractor used sub’s bid, went to sub to tell, sub revoked because of a mistake. “Point of reliance”: when contractor paid bidder’s bond. Held: K because the promise induced reliance and injustice would only be avoided by enforcement. The mistaken party should bear the burden. (In a public K, the contractor will lose a bid bond if he revokes.) D had a duty to exercise reasonable care in preparing bid; D could foresee the harm in underestimating the cost.
a. This case not distinguishable on the facts from Baird
6. Socal Acoustics: Sub’s name was printed in a trade paper after the contractor had used it for a bid. Sub had a bonding limit so passed over other jobs based on what it saw in the paper. Contractor wanted to replace the sub but was barred by a statute. In absence of statute, P.E. could have been used, but not as forcefully because the reliance wasn’t induced by the D but by the paper.
7. Swinerton: Contractor who knew they had submitted the lowest bid sued because the 2nd lowest bidder received the award. Contractor had relied on winning the bid. Held: P.E. because the reliance was based on solicitation which promised that the contract would go to the lowest bidder. (This may be in part due to an anti-gov’t bias, and Swinerton was suing the gov’t.)
8. Future of Hand/Traynor dispute
a. Today, Traynor is the winner, but it might move back to Hand and laissez-faire because of more and more Republican judges

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(6) Rejection

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i. 4 types and exceptions
1. Outright rejection
2. Outright counteroffer
3. Qualified acceptance
4. Non-rejection (exceptions)

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(6) Rejection
(1) Outright rejection

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1. Flat “no”—offer ceases to exist
2. Exceptions:
a. The offeror can insulate against this with the words “I know you’ll say no at first, but think it over”
b. Offeree can delay outright by saying, “I’ll keep it under advisement”

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(6) Rejection
(2) Outright counteroffer

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1. Once a counteroffer is made, the original offer immediately ceases to exist; the original offer is replaced by a new one
a. Minneapolis: P gave a counteroffer by changing the quantity term, which the D rejected. P then returned to try to accept the original offer. Held: no K, varying terms is a rejection, can’t return to the original offer.
2. Exceptions:
a. An offeror can insulate by using above words
b. Offeree can prolong the original offer by saying “keep under advisement” even if it makes a counteroffer

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(6) Rejection
(3) Qualified acceptance

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1. Destroys offer, though parties often think a K has been formed
2. An attempt to change a term is a qualified acceptance
3. Exception: Insulation by the offeror is possible

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(6) Rejection
(4) Non-rejections (grumbling acceptance)

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1. “Would you consider?”
a. This is just a question, not a rejection or counteroffer
2. “Would you lower the price?”
a. This is just a request
3. “That is a ridiculous price.”
a. Merely a comment
4. All of the above do not terminate an offer.

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(7) Supervening illegality

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i. If a material term of an offer becomes illegal before the acceptance or if there is sufficiently important public policy that renders the offer illegal, the offer is automatically terminated
1. Ex: RJ Reynolds makes a tobacco farmer an offer to grow tobacco. Two days later, Congress outlaws tobacco cultivation. The offer has been terminated.

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ACCEPTANCE

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b. Working def:
i. A proper offeree
ii. With knowledge of the offer
iii. And intent to accept
iv. Gives the requested return
v. Unconditionally

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The proper offeree

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i. General rule: only the person who the offeror addressed the offer to (EXCEPTION: Option Ks can be sold or assigned)
1. Immaterial if the offeror would have made the same offer to a 3rd party or the final K would have required no personal performance
ii. Exceptions
1. Option Ks
a. If the offeror has entered into an option K, then he can’t revoke. Most courts say that offeree can transfer to a 3rd party who can accept the offer (as long as it doesn’t prejudice the offeror).
2. Mistake
a. Mistake as to identity of an offeree prevents the formation of a K, but only if it is material or important (offeror must show that but for the mistake, he would not have made the offer to that person)
i. S/A: This is usually immaterial if face-to-face dealing, or if by mail and the offeree was careless in addressing the envelope (Majority: material; Minority: any)

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Knowledge of offer

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(mere knowledge is good enough)
i. General rule: offeree must have knowledge of the offer to accept
1. Broadnax: P returned an escaped prisoner to jail without the knowledge that there was a reward. Held: no K because P can’t receive the award since his action was not induced by the offer and it must be for a K to be formed. (There may be exceptions to this today with rewards because of public policy, but in other areas it is still the general rule.) (Minority: policy is to enforce rewards because of good social policy)
a. If Broadnax would have learned on the way to the jail, part of his performance would have been done after knowledge of the offer and he would have been able to recover.
b. Public policy: we don’t want to encourage ridiculous behavior like letting the prisoner go and then catching him again
2. If offeree is aware of the existence of an offer and performs even without intent to accept, acceptance can be found.
a. Diamond Jim: Fisherman aware of a reward for a particular fish, went fishing without intent to catch the certain fish, but he caught it. Held: K, knowledge of the offer was somewhere in his mind and he accepted it when he caught the fish and brought it in.
ii. Cross-offers: One buyer in SF, one seller in NY: discuss a deal, both go and type up their own Ks and send to each other in the mail. Both of these offers are revocable because neither one has knowledge of the existence of the other offer

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Intent to accept

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i. Where most of the controversy is generated
ii. The manifestation of intent is usually overt and easily identifiable, i.e. “I accept.” (acts or words)
iii. Cases when it is not easy are when there is silence, which is not ordinarily acceptance
1. Fact pattern categories
a. Silence after receipt of an offer (mostly no)
b. Silence after receipt of goods
c. Silence after receipt of services or an exercise of dominion and control over goods (usually implied if duty to notify seller and instead exercise dominion)

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Intent to accept
Silence after receipt of offer

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a. General rule: silence does not serve as acceptance
b. Offeror says if you don’t say anything all day you have accepted to buy my car.
i. Silence here is not acceptance. The offeror can’t impose a duty to speak on the offeree.
c. If in preliminary negotiations it was determined that silence was an acceptable means of acceptance, silence can be viewed as acceptance

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Intent to accept
Silence after receipt of goods

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a. More of a duty to speak if goods are in your hand; if you do not, there is an implied acceptance, a reasonable assumption in terms of the offeror’s expectations.
i. A prior pattern of acceptance or record or previous transactions is good evidence of this.
b. UCC §2-326: unless otherwise agreed, if delivered goods maybe returned by the buyer even though they conform to the K, the transaction is (a) on “sale of approval” and (b) a “sale or return”
c. UCC §2-327 gives receiver of good an option to accept or reject even after receipt
i. Under sale of approval, title does not pass to buyer until acceptance
1. A failure to notify seller of an election to return good is acceptance
ii. Under sale or return, an option to return extends to whole while in original condition, but it must be exercised seasonably and at buyer’s risk and expense
4. Silence after acceptance of services or an exercise of dominion over goods.
a. Norm: Indiana. D accepted at train depot refrigerators of P that he did not order. Held: K, because D’s duty upon receipt was to notify the P of the mistake. Once D took possession and remained silent, he had accepted and a K was formed.
b. Exception: LA Rams. College player got a check from the Rams. Rams knew at the time that he could not accept the check; the player did not endorse the check. Held: no K, because check was not deposited and was received at a time when the player could not accept.
c. The difference between Indiana and LA Rams is the conversion of the goods from which intent can be inferred

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Gives the requested return

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i. There are 3 ways
1. By promise (dispatch required)
2. By performance (dispatch not required, but suggested)
3. Either by making a promise or by performing an act (dispatch not suggested—any reasonable method of acceptance should do the trick)
ii. Legal status of 3 ways: for a method of acceptance to be limited, specific words must be used; i.e. must and will not, should and may

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Gives the requested return - 3 questions

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1. Does the offeree have to communicate acceptance?
2. If communication is required what methods can be used?
3. If communication is required is it valid on dispatch or on receipt?

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Gives the requested return - (1) Does the offeree have to communicate the acceptance?

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1. Bilateral K: may use performance if formal acceptance not required, but must be communicated to offeror
a. Norm: offeror must be notified of acceptance (this is a mechanistic interpretation of K)
i. Social policy: don’t want to prevent offerors from making offers to others in the marketplace if offerees are unclear or slow to reply
ii. White: P received offer for a job to repair office, went out to buy lumber without contacting D. Next day, D revoked. Held: no K. P had to notify the D before he began making purchases
b. Exception: notice is not needed if this was made explicit in the offer (trend  common law reasoning)
i. International: Offer said, “this becomes a K when accepted by the purchaser and approved by executive officer,” which it was. Held: K. There is no need to communicate because it was explicit in the offer that no notice for acceptance needed to be given. The key words were “this becomes a K.”
2. Unilateral K:
a. Norm: no need for notice; beginning a performance is a manifestation of acceptance if it will naturally and normally come to the offeror’s attention
b. Exception: when the performance will not come to the attention of the offeror
i. Bishop (p. 304): P was in Canada and was asked by the D in Illinois to lend the D’s brother some money. P did without accepting. Held: no K, because if the performance will not come to the attention of the offeror, notice is necessary for acceptance.
c. Exception to the exception: if notification is not expected, and this is implicit in the offeror, there is no need to notify. (p. 304)
i. Carlill: Ad if you use product and get flu, get $. P used the product and got the flu and sued for $. Held: K, because ad addressed to the public so no notification was accepted nor wanted. (like Lefkowitz in terms of detail of the ad)
1. Anyone who read it could be an offeree, because there are so many potential offerees, that communication of acceptance is not expected nor wanted.
d. There is a question of which acts can constitute acceptance
i. Notice: if notice is required part of acceptance, the offer can be revoked before notice, but there is a limit on this revocation if there is part performance.
ii. Purchase: the trend is to view purchase as acceptance.
1. This is a sensible outcome: use and notice are combined conditions to pay $.
e. There is S/A
i. Normal unilateral K: no need to communicate acceptance
ii. Communication of acceptance is required
iii. Middle view: purchase required, use and notice are conditions to the contract they are not part of the required acceptance, but revocation after purchase is ineffective

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Gives the requested return - (2) If communication is required what methods can be used?

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1. If a method is prescribed there is only one way to accept
2. If method is suggested and it is followed, that is an acceptance
a. Ever-Tite: Offer to roofer by way of a form, which specified that acceptance could be either by act or a written acceptance. The roofers loaded trucks and went to start to work; other roofers were already there. Held: K. Loading trucks was the beginning of the acts and performance, thus acceptance.
3. A reasonable method is one in an objective, commercial sense
a. Evolution of the CL:
i. If offeror sends by mail, you can send back by mail
ii. If offeror sends by mail, you can send by a faster means (ex: email, fax)
iii. If offeror sends by FedEx, email, fax, etc. in a stable market, you can send back by mail
4. An unreasonable method: like in a very volatile market where the offer was sent by fax or email and you tried to accept by snail mail
5. If the method is ambiguous:
a. Restatement §32: “In case of doubt, offeree can choose to accept by promise to perform or by performance.”
b. UCC §2-206: Unless unambiguous, offer can be accepted in any manner and by any medium reasonable in the circumstances.
c. Allied: Allied went to work on a K after D gave offer that said, “acceptance should be executed on an acknowledgment copy which should be returned to buyer.” Held: K. “should” does not preclude other methods of acceptance; it was merely a suggestion. Performance can be deemed the acceptance.

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(3) If communication is required is it valid on dispatch or on receipt?

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1. Legal methods of acceptance:
a. Unreasonable and unauthorized: effective only upon receipt
b. Reasonable: S/A; some say upon dispatch, others say upon receipt
c. Suggested: effective upon dispatch
d. Required: only method and effective upon dispatch

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Communication - maj rule

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2. Norm: upon dispatch for acceptance and upon receipt for rejections. This is the majority rule for a fluid marketplace.

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Mailbox rule

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deposit in mailbox is acceptance (at CL, the post office was seen as an agent of the offeree who could accept)
i. What if the letter is lost in the mail? Still a K
b. Telegram: acceptance is when the phone order is made
c. When placed in agency and can’t get it back, it’s considered an acceptance upon dispatch

3. Exception: if the offer specifies acceptance is valid only upon receipt
a. Rhode Island: D’s bid said, “successful bidder will receive notice of award…and it will thereupon constitute a binding K.” D revoked before P had accepted, even though it had been mailed. Held: No K because actual delivery of notice was needed before K was formed. The offer was that specific.

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Agent v. Independent contractor

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a. You can dictate what result you want to the agent and how to reach that result
b. You can tell the contractor what result you want, but not how to get there
5. If you send your acceptance by mail in a volatile market, it is only effective upon receipt

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Overtaking acceptance and rejections

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a. Legally overtaking acceptance
i. Rejection dispatched by mail would be valid on receipt, but then acceptance mailed before rejection received would be valid because acceptance is valid upon dispatch
b. Physically overtaking rejection
i. Example is a mailed acceptance followed by a phone call to reject: the acceptance would predate and thus the acceptance would be valid.
c. Both cases have a prejudice for the offeror
i. There is S/A by the courts
1. Primarily depends on a change in position by the offeror.
a. If there is no change, there is the mailbox rule, if the offeror wants it applied.

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Unconditional acceptance

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i. Common law requirement (services, realty)
1. There must be a mirror image; any difference is fatal to K formation
2. There are two types of differences: actual and material
a. Actual difference
i. If K is only making a term explicit that was already implied-in-fact or implied-in-law, this will not preclude a finding of K.
b. Material (substantive) difference
i. The difference should have real world economic significance before a K is precluded
1. Minn St. Louis RR: D offered a price quote for 2000-5000 tons. P ordered 1200 tons and then attempted to change to 2000 when it was rejected by D. Held: No K, difference in quantity is material; notice also a counteroffer made
c. The common law can reach extremes with the mirror image rule. Case below shows the rigidity and stupidity of mirror image rule under CL. Example of procedural difference:
i. Poel: There was insistence in the boilerplate language that a prompt acknowledgement must follow for acceptance. It did not. Held: No K; it was decided that this was a material difference.
ii. The extremes reached led to UCC § 2-207 (good and deals with paper only)

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UCC §2-207 was drafted to rid K problems of common law evils

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see outline