Additional/Different Terms in K of Sale
Is there a K?
YES, if there is agreement on the price and thing
AND
Acceptance is not conditioned on the acceptance
of the additional/different terms
What are the terms of the K?
No; no contract
First you have to know the parties involved
Are both parties merchants?
Merchant = someone who habitually buys and sells things of the kind involved in the K (Art. 2601, cmt (h))
No; then layperson rules apply
What are the terms of the K?
Additional/different terms are not part of the K;
they are mere proposals for modification; they
must be accepted by Offeror to become part of the
contract.
"Materially alter" = of a nature that it must be presumed
the offeror would not have contracted with those terms
(art. 2601, cmt. (g))
Examples of material alterations: a clause limiting liability;
arbitration clause; etc.
There is no agreement on price and thing
OR
Acceptance is conditional on acceptance of
additional/different terms
Was there performance?
Yes; contract exists (Art. 2602)
What are the terms of the contract?
The terms on which the communications
of the parties agree (art. 2602)
Yes; then Merchant rules apply
Are the terms additional or different?
Different Additional
If they (1) Materially alter the K,
(2) expressly limit acceptance to the add'l
terms, or
(3) the offeror timely notifies the offeree of
the offeror's rejection of the additional
terms, then the additional terms are not
part of the contract.
Otherwise, the additional terms ARE
part of the K.