Acceptance

Front 1

What is an acceptance?

Back 1

• R §50(1) – “Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.”
(2) Acceptance by performance requires that at least part of what the offer requests be performance or tendered and includes acceptance by a performance which operates as a return promise (see R §54).
(3) Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.

Front 2

Who may accept the offer?

Back 2

An offer can be accepted only by a person whom it invites to furnish the consideration.

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Method of Acceptance

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(R §30)– the offeror is the master of his offer; he can prescribe the method by which it may be accepted (where none is prescribed, it is by any medium reasonable given the circumstances)

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Acceptance of a Unilateral Contract - requests by performance

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• Accepted only by full performance (Classicist view)
o Sometimes part performance is sufficient (Modern view)
• Intent to accept is implied if there is no evidence of the contrary
• R §45 Option Contract
o Option K created with part performance of an offer! (But only if offer doesn't invite promise as acceptance.)
o Duty of offeror in Option K depends on completion of performance (requires full performance!)
• Offeree doesn’t have to give notice of his intention to accept; acceptance occurs through performance by the offeree of the act desired by the offeror
o R§ 53, UCC §2-206 – although a unilateral contract becomes binding upon performance, the offeree must nonetheless give the offeror notice that he has performed if the offeror has reason to know of the performance.
• Failure to give such notice may discharge the contractual duty of the offeror
• This requirement protects offeror from being bound indefinitely by an acceptance of which he is unaware

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R §45

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Option Contract

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R§ 53, UCC §2-206

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Although a unilateral contract becomes binding upon performance, the offeree must nonetheless give the offeror notice that he has performed, unless the offeror has reason to know of the performance.
• Failure to give such notice may discharge the contractual duty of the offeror
• This requirement protects offeror from being bound indefinitely by an acceptance of which he is unaware

Front 7

Carlill v. Carbolic Smoke Ball

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{Unilateral K, Reward, Modern view on Interpretation}

o D put out a newspaper ad offering a reward to any smoke ball user (who followed the directions) who contacted the influenza after using the ball as directed. P (Carlill) relied on the ad, bought the ball, and then suffered influenza.
o ISSUE: If one performs all the conditions for receiving a reward offered in an ad, has the offer been accepted? Yes, a contract has been created for payment of the reward.
o HOLDING: The ad was an express promise (more than “mere puffery”) to pay 100 pounds (shown by D depositing 1000 pounds into the bank). Could argue it was just ‘puffery’ if they hadn’t deposited $.
o An advertised reward to anyone who performs certain conditions is an offer, and the performance of such conditions is an acceptance (which creates a valid K).
o §54 – where performance is the invited mode of acceptance, notice of acceptance isn’t required (especially in reward cases).
o (Interpretation of duration of immunity must be looked at) → Ad could be reasonably construed for those who caught the flu w/in a “reasonable time” after using the smoke ball.
• Crt departed from strict classicist or textualist view, which says if there’s uncertainty in terms, there’s no offer. Crt uses modern view and makes reasonable interpretation to determine there was an offer! Sometimes vagueness can be clarified by the crt!
• “Contra proferentum” → you wrote it and weren’t clear, we are going to favor non-drafting party’s interpretation!

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Rewards and recovery

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If you see reward and then perform then you can recover; If you see the reward in the middle of your act you can recover if you continue; If you complete the act and then see the reward you can’t recover (no reliance).

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Acceptance of a Bilateral Contract

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• Acceptance by promise rather than by performance
• The acceptance will typically be in words, but can be in actions (if they fairly indicate to offeror that the offeree intends to accept the offer)
• For the acceptance to be effective, the offeree must at least attempt to communicate it to the offeror (in a reasonably prompt manner)

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Mode of acceptance not specified in offer

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§30 (2): if the offeror doesn’t specify the mode of acceptance, the acceptance may be given “in any manner and by any medium reasonable in the circumstances

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§32 --Mode of acceptance not stated

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When mode of acceptance isn't stated ...“The offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses”
- (Comment) Although some offers may naturally require performance (ie. Reward)

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§ 62 --Acceptance by promise or performance

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Effect of Performance by Offeree Where Offer invites Either Performance or Promise – beginning invited performance is an acceptance by performance AND a promise to complete performance

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§56 --Acceptance by promise

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“It is essential to an acceptance by promise that the offeree exercise reasonably diligence to notify or that the offeror receives acceptance seasonably.”

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§50 (3) --Acceptance by promise

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Acceptance by promise requires that the offeree complete every act essential to making of the promise

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§54 --Acceptance by performance

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Acceptance by Performance
• §54 - no notification necessary to make acceptance effective unless contract requires notification

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Notification of Acceptance (Unilateral and Bilateral K's)

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o Acceptance by Promise (to “undertake” means acceptance by promise)
• §56 – “It is essential to an acceptance by promise that the offeree exercise reasonably diligence to notify or that the offeror receives acceptance seasonably.”
o Acceptance by Performance
• §54 - no notification necessary to make acceptance effective unless contract requires notification
• If offeree has reason to know that offeror has no adequate means of learning of performance with reasonable promptness and certainty, contract duty of offeror is discharged unless
• Offeree exercises reasonably diligence to notify offeror of acceptance, or
• Offeror learns of performance w/in a reasonably time, or
• Offer indicated that notification of acceptance isn’t required

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Ever-Tite Roofing v. Green

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{Acceptance by performance, no notification needed, too late to revoke}

o D entered into K w/ P (offeror- Roofing Co.) to re-roof their house. A provision in the agreement stated that it would become binding upon either written acceptance or commencement of performance by P (Roofing Co). After receiving credit approval, Roofing Co. loaded its trucks with materials and drove to D’s residence where they found that the work had already started and D had hired another company.
o ISSUE: Was there acceptance by performance, creating an enforceable contract? YES, so it was too late for D to revoke.
o HOLDING: P did begin performance (not mere preparation) by the loading of its trucks and transporting of its materials to D’s house. Therefore, P did accept the offer before D’s revocation.
• No revocation required for acceptance by performance.
o Since K specified no time w/in which K was to be accepted, “a reasonable time must be allowed therefore in accordance w/ the facts and circumstances and the evident intention of the parties.” (P needed some time to get credit report, so this time was reasonable.)
o Crt considered the loading of the trucks as commencement, but D could argue that commencement began when ACTUAL work started

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UCC §2-206 Acceptance

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• Shipment of Goods – either shipment or a promise to ship constitutes acceptance
o “An order or other offer to buy goods for prompt shipment shall be construed as inviting acceptance either by a prompt performance to ship or by the prompt shipment of a conforming OR nonconforming goods (considered counter-offer).

o Nonconforming Goods – seller accepts by sending goods which don’t match the order; he thus accepts and ‘breaches’ at the same time. (Not liable for breach!)
• Accommodation Shipments – the seller can ship what he knows to be nonconforming goods w/o risking breach, by accompanying the shipment w/ a message saying words to the effect, “I know I’m sending goods that don’t match your order, and I’m doing this only to accommodate you. You may keep the goods and pay for them, or you may return them in which case there will be no contract b/w us.”
• Such shipments are treated as counter-offers
• Buyer has a choice: (1) keep the nonconforming goods, in which case there is a K for the goods as they are, at the price the seller has indicated they will charge OR (2) the buyer can reject the shipment and thus prevent a K from coming into existence. In this situation, no party is liable for breach.

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Shipment of Goods

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Either shipment or a promise to ship constitutes acceptance
o “An order or other offer to buy goods for prompt shipment shall be construed as inviting acceptance either by a prompt performance to ship or by the prompt shipment of a conforming OR nonconforming goods (considered counter-offer).

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Nonconforming Goods

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seller accepts by sending goods which don’t match the order; he thus accepts and ‘breaches’ at the same time. (Not liable for breach!)
• Accommodation Shipments – the seller can ship what he knows to be nonconforming goods w/o risking breach, by accompanying the shipment w/ a message saying words to the effect, “I know I’m sending goods that don’t match your order, and I’m doing this only to accommodate you. You may keep the goods and pay for them, or you may return them in which case there will be no contract b/w us.”
• Such shipments are treated as counter-offers
• Buyer has a choice: (1) keep the nonconforming goods, in which case there is a K for the goods as they are, at the price the seller has indicated they will charge OR (2) the buyer can reject the shipment and thus prevent a K from coming into existence. In this situation, no party is liable for breach.

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Acceptance by Silence

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• Common Law – “he who is silent cannot give consent”
• R §69 recognizes silence as a mode of acceptance in the following instances:
o Offeror has authorized silence as acceptance
o Offeree who silently receives the benefit of services (not goods) will be held to have accepted a K for them if (1) he had a reasonably opportunity to reject them and (2) he knew or should’ve known that the provider of the services expected to be compensated for them
o Prior course of dealings of the parties may make it reasonable that the offeree’s silence can be construed as acceptance

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R §69 recognizes silence as a mode of acceptance in the following instances:

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o Offeror has authorized silence as acceptance
o Offeree who silently receives the benefit of services (not goods) will be held to have accepted a K for them if (1) he had a reasonably opportunity to reject them and (2) he knew or should’ve known that the provider of the services expected to be compensated for them
o Prior course of dealings of the parties may make it reasonable that the offeree’s silence can be construed as acceptance
o Unintentional acceptance by exercising dominion over the goods offered to him in the absence of showing a contrary intention. Acceptance of BENEFIT. (see Russell v. Texas below.)

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Russell v. Texas Co.

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{Acceptance by Silence or Conduct --Exercise Dominion Over that which you’re not entitled to}

o P owned land, D owned the mineral rights. D’s land use was in excess of mineral reservation in original deed. Offer to D contained express proviso that the continued use of minerals would constitute acceptance of P’s offer. D didn’t notify P of its rejection of offer in a timely fashion and continued to use materials. (benefited with continued use)
o ISSUE: Does performance under an offer constitute acceptance of an offer, even if the offeree didn’t intent to accept the offer? YES. (Acceptance by silence here.)
o HOLDING: Where the offeree exercises dominion over things which are offered to him, such exercise of dominion in the absence of other circumstances showing a contrary intention is an acceptance. D’s continued use of the land came within terms specified for acceptance. R §69
• *Not only acceptance by silence here, offeree is exercising dominion over that which he is not entitled to!
o Objective test: whether offeror would be reasonably led to belief that the act of offeree was an acceptance. D’s acceptance of benefits (by exercising dominion over that which is not his) is deemed an acceptance. Otherwise he is getting something for nothing!

Front 24

“Contra proferentum”

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You wrote it and weren’t clear, we are going to favor non-drafting party’s interpretation!

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Modern view

(unlike Classicist view)

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R §30
Much more flexible! By allowing reasonable manner (performance/promise) and mode (mail, telegraph, phone) of acceptance!
ie) sometimes part performance is sufficient, rather than full performance

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R §45 Option Contracts

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-Option K created with part performance of an offer! (But only if offer doesn't invited promise as acceptance.)
-Duty of offeror in Option K depends on completion of performance (requires full performance!)

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R§ 53, UCC §2-206

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although a unilateral contract becomes binding upon performance, the offeree must nonetheless give the offeror notice that he has performed if the offeror has reason to know of the performance.
• Failure to give such notice may discharge the contractual duty of the offeror
• This requirement protects offeror from being bound indefinitely by an acceptance of which he is unaware

Front 28

Problem with acceptance by silence

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Easy to trap people with this wording! (not a good indication of acceptance)
-Huge burden!
-(Russell v. Texas included a unique circumstance where D exercised dominion over that which he wasn't entitled to IN ADDITION to silence as acceptance)

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Typical contract behavior (offer, counter offer, rejection)

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-Offer: effective when receives acceptance

-Counter-offer: effective when receives acceptance

-Rejection: effective when received

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MAILBOX RULE

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Acceptances are deemed to be effective on mailing.
(Offers, revocations, counteroffers, rejections are effective on receipt)
• Delaying acceptance until receipt would keep the offeree in limbo, so the law curbs the revocation power of the offeror
• R §63(a) – “An acceptance made in a manner and by a medium invited by an offer is operative and contemplates the manifestation mutual assent as soon as put out of the offeree’s possession, w/o regard to whether it ever reaches the offeror.”
-Default rule: can contract around it

Application
– Applies only to acceptances by promise, not by performance
• No reason to think that the rules should be any different w/ respect to more modern methods of communication
• The mailbox rule DOESN’T APPLY to option contracts. Does not apply if the offer provides otherwise (b/c it’s a default rule).

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R §63(a)

(Mailbox rule)

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Mailbox rule– “An acceptance made in a manner and by a medium invited by an offer is operative and contemplates the manifestation mutual assent as soon as put out of the offeree’s possession, w/o regard to whether it ever reaches the offeror.”

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Application of Mailbox Rule

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Applies only to acceptances by promise, not by performance
• No reason to think that the rules should be any different w/ respect to more modern methods of communication
• The mailbox rule DOESN’T APPLY to option contracts. Does not apply if the offer provides otherwise (b/c it’s a default rule).

Front 33

Adams v. Lindsell

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Established mailbox rule. Offer to buy wool arrived later than it should have bc offeror incorrectly addressed letter containing offer. Offeree immediately replied with an acceptance (Sept. 5th), but offeror sold wool to others before receiving acceptance (Sep. 8th). *Acceptance was dispatched before wool was sold, so a contract was already formed prior to revocation!

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Overtaking Rejection

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Acceptance sent first, but rejection received first →still bound when mailed!
Aka: (rejection sent 2nd but received 1st; acceptance sent 1st but received 2nd)
o EX> seller sends rejection through over-night so it beats the acceptance on arrival
o Offeree is still bound when acceptance is mailed (it would be unfair to allow the offeree to speculate and 2nd guess his acceptance during the time it takes the letter to arrive)
--Exception could be if the offeror initially relies on the rejection (and sells it to3P)

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Overtaking Acceptance

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(R § 40) – Exception to Mailbox Rule!
Rejection sent first, followed by acceptance → depends on what gets their first!
o If acceptance is received first, then a contract is formed when received!
o If rejection is received first, then acceptance is received after → acceptance is considered a counteroffer!
• R § 40 comment b: The offeror will probably rely on the rejection when received before acceptance (so we must protect the offeror in such reliance)
• T/F, rejection or counteroffer by mail doesn’t terminate the power of acceptance until received by the offeror. (Offeree can quickly overnight an acceptance before rejection gets there! Otherwise, it will be a counteroffer- if rejection sent first.)

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Misdirection of Acceptance

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if an unreasonable means of communicating the acceptance is used, or the acceptance is misaddressed, it is still effective when dispatched if it is received w/in the time in which a properly dispatched acceptance would normally have arrived. (R §67, UCC §1-201(36)). If not received w/in this time, it is effective only as of the time it is actually received.

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Acceptance lost in transmission

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if the acceptance is properly dispatched, it is effective at the time of dispatch even if it is lost and never received by the offeror at all.
o Exception: Loss of Acceptance May Discharge Offeror - §63: “the language of the offer is often properly interpreted as making the offeror’s duty of performance conditional on receipt of the acceptance. Indeed, where the receipt of notice is essential to enable the offeror to perform, such a condition is normally implied.”

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Acceptance of Option Contracts

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Effective upon receipt by offeror! (§64b). (Not upon dispatch.)

Front 39

Effective date of revocation of offer

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Revocation by the offeror is treated essentially like a rejection, the revocation isn’t effective until it is received by the other party.

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Risk of Mistake in transmission

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A contract is formed on the terms of the offer as received by the offeree. This is the case regardless of whether the mistake in transmission is the fault of the offeror.

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If the Acceptance contains Additional or Different Terms (from the offer)...

Under Common Law:

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Acceptance if it’s a precise mirror image of the offer. Conflicts to the slightest extent b/w the offer and “acceptance” = rejection and counteroffer.
• However, requests for clarification/inquiries aren’t included. §59 & 61
• The idea that a counter-offer terminates an offer is the default rule, which can be contracted around unilaterally by either the offeror or offeree. §39

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Mirror Image Rule

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An offer must be accepted exactly without modifications. The offeror is the master of his own offer. An attempt to accept the offer on different terms instead creates a counter-offer, and this constitutes a rejection of the original offer. (§59)

Front 43

Minneapolis & St. Louis Railway v. Columbus Rolling Mill

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{mirror image rule}
o P requested less iron rails (in acceptance) than offer required. (Quantity=material term.) P’s failure to place an order w/in the terms of the offer leaves the matter as if no offer had been made (like a rejection). This puts an end to negations unless offeror decides to reopen them or assent to the modification.
o D didn’t assent or reopen the offer , so P’s 2nd acceptance w/in the terms (the original quantity offered by D) was ineffectual.
o P’s 1st “acceptance” (really was a qualified acceptance) altered a material term (quantity). But, you can’t revive an offer once it was ‘rejected’ with a counter offer. (As long as the offer has been neither accepted nor rejected, the negotiations remain open with no obligation imposed on either party.

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“grumbling acceptance”

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§59 & 61 A 'request' or 'inquiry,' or 'suggestion' for a change is okay bc acceptance isn't conditioned on this request/suggestion.

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Is there any way around the fact that a counter-offer terminates an offer?

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Yes, it is a default rule, so parties may contract around it. §39

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Problem with the common law Mirror Image Rule (§59)

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Raises the cost of transacting! Some may still want to be in a contract even while offering some other terms. (Also, opportunistic for party that sent the last form.)

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If the Acceptance contains Additional or Different Terms (from the offer)....

According to UCC §2-207 Battle of the Forms:

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(Liberal)
A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

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Acceptance by silence according to the UCC (for acceptance with additional terms- aka qualified acceptance)

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UCC §2-207 Battle of the Forms

If a MERCHANT receives an acceptance with added terms (qualified acceptance or counter-offer), then his silence signifies acceptance of those additional terms.
• It effectively modifies the common law rule that a proposal for a contract can’t be accepted by silence.

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(UCC §2-207 Battle of the Forms)

How do we construe the additional terms in the acceptance?

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The additional terms in the acceptance are to be construed as proposals for addition to the contract.
-Although, for a MERCHANT, added non-material terms become part of the contract (automatically acceptance unless it says otherwise)

Front 50

(UCC §2-207 Battle of the Forms)

How do we construe the additional terms in the acceptance for MERCHANTS? (different!)

Back 50

Between merchants additional terms become part of the contract unless:
• (1) the offer expressly limits acceptance to the terms of the offer;
• (2) they materially alter it;
• or (3) notification of objection to them has already been given or is given w/in a reasonably time after notice of them is received.

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Interpreting Conduct under UCC §2-207 (Battle of the Forms)

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Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such cases, the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of the act.

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Two Major Changes supplied from UCC §2-207 (compared to Common Law)

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(1) abolishes the mirror image rule
(2) merchants’ additional terms become part of the contract in certain circumstances if the other party (the offeror) merely remains silent. [It effectively modifies the common law rule that a proposal for a contract can’t be accepted by silence.]

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Magic Proviso

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“acceptance expressly conditional on assent to changes”
• States something like “this acceptance of your offer is effective only if your agree to all of the terms listed on the reverse side of this acceptance form.”
• There is NO CONTRACT formed by the exchange of the documents (no contract on the writings)

Front 54

UCC 2-207

What if the seller then goes ahead and ships the wrong goods?

Back 54

It constitutes as a counteroffer by performance. Buyer can accept the offer by keeping and paying for the goods or he can send the goods back as a means of rejecting the offer.

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(UCC 2-207)

Contract by Parties’ Conduct

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If the offeror doesn’t assent to new/different terms, but parties go ahead and make a full or partial performance. Shipment of goods or payment for them may cause a contract by conduct to come into existence. (Look to prong 3.) The terms of that contract were the terms on which the writings agreed, plus supplementary terms (gap-fillers) from the Code.
o If the forms don’t agree on whether there should be X, there will be no X unless X is a supplementary term available under the Code. If X isn’t a supplementary term, no X

Front 56

Itoh v. Jordan

(Exchange of Goods Covered by UCC)

Back 56

{Battle of the Forms, Contract by Conduct - UCC 2-207(3)}

o D argues that they have an agreement to arbitrate w/ P. Jordan sent purchase order for a quantity of steel coils. Offer (order for steels) said acceptance was expressly conditional on buyer’s (Itoh) assent to arbitration (magic proviso). Itoh never expressly assented or objected to the additional arbitration term. Yet, Jordan delivers the steel coils anyways. Itoh later claims that Jordan sold them defective steel. Jordan argues that the exchange of forms between the parties created a contract (even though under UCC §2-207, there was no contract on the writings) and he requested arbitration, as requested in the original offer’s magic proviso.
o ISSUE:
• 1) Was a contract formed (even if Itoh never accepted the condition)? Yes, a K was formed under UCC 2-207(3) due to conduct of parties.
• 2) Is the additional arbitration term part of the contract? No, arbitration is not a gap filler governed by the UCC
o HOLDING: There was no contract on the writings (bc Itoh never accepted express conditional term of arbitration), so both parties could have walked away! Only a counteroffer and original offer nullified.
o HOWEVER, since the parties continued to act, under UCC 2-207 (3) their subsequent actions formed a contract. This NEW contract automatically contains all the provisions AGREED to on the first (potential) contract + any UCC “gap fillers.” Arbitration is not a gap filler, so it’s not part of the contract!
• Look at their conduct: D proceeded to ship and P accepted the shipment
• If this were not an exchange of goods, it would fall under common law and the mirror image rule → there would be no chance of a contract!

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NO Magic Proviso Situations with Additional Terms in Acceptance

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o Contract formed
o Proposal for addition to the contract – depends on whether both parties are merchants (Almost every person in business will be considered a merchant, such as banks and universities.)
• At least one party NOT a merchant – additional terms are added to the K if the offeror explicitly assents to it
• BOTH parties are merchants – additional terms automatically become part of the K
• Three Exceptions
o Objection ((a) and (c)) – Addition will not become part of K if the offeror affirmatively indicates that he does not want it to.
• Subsection (a) prevents the addition from entering the contract “if the offer expressly limits acceptance to the terms of the offer.”
• Subsection (c) prevents the term from entering the K if “notification of objection to it has already been given or is given w/in a reasonably time after notice of it is received.”
o Materiality (b) –the additional term can’t be one which materially alters the K.
o Additional terms in 1st document, but not in 2nd → accepted ALL terms of the offer (just NOT conflicting terms)

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Different/Conflicting Terms in Documents

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o Two Approaches:
1. Knockout Rule – the conflicting clauses knock each other out of the contract, so that neither enters the contract. Instead, a UCC gap filler provision is used if one is relevant; otherwise the common law controls.
2. Alternative Approach – the clause proposed in the 2nd form (the acceptance) simply fails to have any effect. Rather, the result is that the original clause appearing in the offer enters into the K.
o Conflict w/ a gap-filler: when conflict is b/w one expressly drafted clause and a UCC gap filler, most courts would apply the Knock-Out Rule, yet the end result would be that the gap filler provision would prevail.

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Knockout Rule (No magic proviso, different conflicting terms)

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The conflicting clauses knock each other out of the contract, so that neither enters the contract. Instead, a UCC gap filler provision is used if one is relevant; otherwise the common law controls.

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Alternative Approach (No magic proviso, different conflicting terms)

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The clause proposed in the 2nd form (the acceptance) simply fails to have any effect. Rather, the result is that the original clause appearing in the offer enters into the K.

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Conflict w/ a gap-filler (No magic proviso)

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When conflict is b/w one expressly drafted clause and a UCC gap filler, most courts would apply the Knock-Out Rule, yet the end result would be that the gap filler provision would prevail.

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Response diverges too much to be an acceptance

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o A purported acceptance may in fact diverge so materially from the terms of the offer that it will not serve as an acceptance at all.
o Even if there’s some agreement on the bargained terms, there’s no K if they diverge as to price, quality, quantity, delivery terms.

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Contract by Parties’ Conduct - full/partial performance is made

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→ crts grant great deference to conduct of parties!

o Solution (§2-207(3)) – “conduct by both parties which recognize the existence of a contract is sufficient to establish a contract for sale although the writings of the parties don’t otherwise establish a contract. In such cases, the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provision” of the UCC.
o Contract by Conduct where there is not even an attempt at offer and acceptance → parties’ conduct can be used to find an agreement even where neither party ever made anything that even remotely resembles an offer or acceptance.
o True under 2-207(3) and 2-204(1).
o Summary → If parties behave in a way indicating that they think they have an agreement, that agreement will be enforced even if there was no formal offer or acceptance, or even a recognizable attempt at making such.

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Confirmation of an Oral Agreement

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Oral agreement may not be enforceable due to failure to comply w/ the SOF, but it is nonetheless a ‘contract.’ Therefore, a document subsequently sent by one party confirming the oral agreement to the other can’t be viewed as an ‘acceptance’ in the normal legal sense.

o UCC 2-207 treats the confirmation of an oral agreement as a separate category!
o Additional terms in confirmation → same rules
o Different terms in confirmation → different terms don’t enter the contract. {No Knock-Out rule. Magic Proviso/Conditional Clause has no effect.} Conflicting confirmation parts are simply taken out.

Front 65

UCC 2-207 treats the confirmation of an oral agreement as a separate category!

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o Additional terms in confirmation → same rules
o Different terms in confirmation → different terms don’t enter the contract. {No Knock-Out rule. Magic Proviso/Conditional Clause has no effect.} Conflicting confirmation parts are simply taken out.