1. Has there been an offer and acceptance? A conduct for the sale of goods?

The following is
conduct…

I. FORMATION UNDER THE UCC

i. Parties may form a contract through conduct and not rely solely on the
mechanics of offer and acceptance
ii. A contract for sale may be found even though the precise moment of its
making is undetermined and it may be formed in any manner sufficient to
show agreement.
1. § 2-204. Formation in General.
a. (1) A contract for sale of goods may be made in any manner
sufficient to show agreement, including conduct by both parties
which recognizes the existence of such a contract.

If yes, then there is a contract even if the moment of its making is undetermined. If no, the
parties may not have intended to contract and none will have been created.
Indefiniteness where one or more terms left open? A contract for the sale of goods does
not fail for indefiniteness if the parties have intended to make a contract and there is a
reasonably certain basis for giving an appropriate remedy.

1. § 2-204. Formation in General

a. (3) Even though one or more terms are left open a contract for
sale does not fail for indefiniteness if the parties have intended
to make a contract and there is a reasonably certain basis for
giving an appropriate remedy

Acceptance has an offer specified a method of acceptance?

Yes if so then the offer may be accepted only in the manner invited by the offer. No
then the offer may accept “in any manner and by any medium reasonable in the
cirucmstances

i. § 2-206. Offer and Acceptance in Formation of Contract.

2. (1) Unless otherwise unambiguously indicated by the language or
circumstances
a. (a) an offer to make a contract shall be construed as inviting
acceptance in any manner and by any medium reasonable in the
circumstances

Acceptance by Promise to Ship or Shipment was an order to other offer to buy goods for
prompt or current shipment accepted either by a prompt promise to ship or by the cpropmpt
or current shipment of conforming goods?
Yes there was acceptance. No it was a shipment of non-conforming goods. This is not
an acceptance if the shipment of non-conforming goods is an accommodation to the offeror.

§ 2-206. Offer and Acceptance in Formation of Contract.

 3. (1) Unless otherwise unambiguously indicated by the language or
circumstances
a. (b) an order or other offer to buy goods for prompt or current
shipment shall be construed as inviting acceptance either by a
prompt promise to ship or by the prompt or current shipment of
conforming or non-conforming goods, but such a shipment of
non-conforming goods does not constitute an acceptance if the
seller seasonably notifies the buyer that the shipment is offered
only as an accommodation to the buyer.

Ask: did the seller seasonably notify the buyer that the shipment of non-conforming
goods was offered only as an accommodation to the buyer and not an acceptance?
Yes if so then the seller’s shipment of non-conforming goods is not an acceptance.
No then the seller’s non-conforming shipment is an acceptance and a breach of
contract.

2. “Firm offer” did a merchant offer to buy or sell goods in a signed writing which promised
to hold the offer open?
§ 2-205. Firm Offers.
An offer by a merchant to buy or sell goods in a signed writing which by its
terms gives assurance that it will be held open is not revocable, for lack of
consideration, during the time stated or if no time is stated for a reasonable time, but
in no event may such period of irrevocability exceed three months; but any such term
of assurance on a form supplied by the offeree must be separately signed by the
offerorr
i.U nder UCC 2-205 limits the offeror’s power to revoke making the offer
irrevocable.
(1) there has actually been an offer
(2) it has been made by a merchant
(3) to buy or sell goods
(4) which gives assurances that it will be held open, is not revocable
for lack of consideration
(5) in signed writing
(6) which is for the time state or for a reasonable time if no time is
stated, up to a max of 3 months
Yes then the offer is not revocable for lack of consideration, during the time stated
or if no time is stated then not more than 3 months. No then the offer is revocable
any time before acceptance unless it is made irrevocable under one of the other
expections
3. “Battle of the forms”- have one or both parties used oral or written communications in
the process of forming a contract where the writing exchanged may have been preprinted
order and confirmation forms containing standard, boilerplate terms? If so, tehn a conflict
between them is possible since such standard terms are usually designed to protect the
interests of the that party.

§ 2-207. Additional Terms in Acceptance or Confirmation.

(1) 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.

(2) The additional terms are to be construed as proposals for addition to the contract.
Between merchants such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or is given within
a reasonable time after notice of them is received.

(3) 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 case 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 this Act.

Ask the following:

Acceptance is the response to the offer “a definite and seasonable expression of

acceptance or a written confirmation of prior oral agreement?
Yes proceed to Part (terms in acceptance)
No then no contract has been formed by the writings of the parites. Proceed to
(Conduct) to determine whether the conduct of the parties recognizes the existence
of a contract.
Terms in Acceptance does the acceptance/confirmation state terms “additional to or
different from” the offer?
Yes then ask: is acceptance of the offer “expressly conditional” on the offeror’s
assent to the additional terms
Yes then ask did the offeror expressely assent?
Yes a contaract is formed. No then no contract has been formed by the
writings of the parties. Proceed to (Conduct) to determine whether the
conduft of the parties recognizes the existence of a contract.
No if the responise is a definte and seasonable expression of acceptance and it is
not expressly conditional on assent to new terms, it is in acceptance even though it
 states terms different from or additional to those in the offer. There is a contract and
the next question to determin its terms. Ask: are both parties merchants?
Yes then the agreed upon terms are included and additional terms become
part of the contract as well unless:
(1) the offer was expressly limited to its terms
(2) the additional terms materially alters the contract
- or-
(3) the offeror has already given notice of objection to the additional
term or it is given within a reasonable time after notice is received.

§ 2-207. Additional Terms in Acceptance or Confirmation.

(2) The additional terms are to be construed as proposals for addition to the
contract. Between merchants such terms become part of the contract unless:

(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or is
given within a reasonable time after notice of them is received.

[If you are asked to deal with “different terms” then you should analyze the fact
following the 3 approaches that courts follow with respect to different terms:
(1) approach different terms the same as additional terms
(2) disregards different terms in the acceptance since they are not
mentioned in 2-207(2) and are not to be construed as proposals that
can become part of the contract
(3) apply the “knockout rule” where the conflicting terms on the
parties’ offer and acceptance “knock each other out” and neither term
becomes part of the contract]

No then the agreed upon terms are included and additional terms are
merely proposals for addition to the contract

No then there is a contract and it consists of the agreed upon terms

Conduct does the contract of the parties “recognize the existence of the contract”? Has
there been a tender and acceptance of performance?
Yes a contract has been formed by the parties’ conduct. Its terms are those upon
which the parties’ writings and the UCC’s “supplementary terms.” Missing terms
may be supplied by an applicable trade usage or course of dealing or performance
between the parties.
No then no contract has been formed.
Under the UCC there are issues involving Consideration

Sale of Goods is there a modification for a contract involving the sale of goods? If so, then
consideration is not required under UCC 2-209:

Modification, Rescission and Waiver. UCC 2-209

(1) An agreement modifying a contract within this Article needs no
consideration to be binding.
(2) A signed agreement which excludes modification or rescission
except by a signed writing cannot be otherwise modified or rescinded,
but except as between merchants such a requirement on a form
supplied by the merchant must be separately signed by the other party.
(3) The requirements of the statute of frauds section of this Article
(Section 2-201) must be satisfied if the contract as modified is within
its provisions.
(4) Although an attempt at modification or rescission does not satisfy t
the requirements of subsection (2) or (3) it can operate as a waiver.
(5) A party who has made a waiver affecting an executory portion of
the contract may retract the waiver by reasonable notification received
by the other party that strict performance will be required of any term
waived, unless the retraction would be unjust in view of a material
change of position in reliance on the waiver.
2-209 eliminates the requirement of consideration for an agreement modifying a
contract for the sale of goods.
The modification must be (1) made in good faith (desire to escape a bad bargain or
extortion would be in violation of good faith)
Although the code requires the modification to meet the test of good faith. Ask: was the
modification made in good faith:
Yes then the modification is enforceable
No if the party acted in bad faith to escape a performance due under the original
contract terms then the modification is not enforceable.

The UCC under the Statute of Frauds

Under 2-201 requires that “some writing sufficient to indicate that acontract for sale has
been made btween the parites and signed by the party against whom enforcement is
sought.”
UCC 2-201: Formal Requirements; Statute of Frauds.
(1) Except as otherwise provided in this section a contract for the sale of goods for the price
of $500 or more is not enforceable by way of action or defense unless there is some writing
sufficient to indicate that a contract for sale has been made between the parties and signed by the
party against whom enforcement is sought or by his authorized agent or broker. A writing is not
insufficient because it omits or incorrectly states a term agreed upon but the contract is not
enforceable under this paragraph beyond the quantity of goods shown in such writing.
However, there are several notable expection where an oral contract is enforceable absent writing:

(1) the contract calls for specially manufactured goods for the buyer and seller has made a
substantial beginning in their manufacture.
UCC 2-201(3)(a)
(3) A contract which does not satisfy the requirements of subsection (1)
but which is valid in other respects is enforceable
(a) if the goods are to be specially manufactured for the buyer
and are not suitable for sale to others in the ordinary course of
the seller's business and the seller, before notice of repudiation
is received and under circumstances which reasonably indicate
that the goods are for the buyer, has made either a substantial
beginning of their manufacture or commitments for their
procurement; or
(2) the contract is between merchants and within a reasonable time a written confirmation of
the oral contract is sent by one of the parties and the party receiving it does not send a written
objection within 10 days.
UCC 2-201(2)
(2) Between merchants if within a reasonable time a writing in
confirmation of the contract and sufficient against the sender is
received and the party receiving it has reason to know its contents, it
satisfies the requirements of subsection (1) against such party unless
written notice of objection to its contents is given within 10 days after
it is received.
(3) the contract is admitted in court pleadings or testimony by the party against whom
enforcement is sought
UCC 2-201(3)(b)
(3) A contract which does not satisfy the requirements of subsection (1)
but which is valid in other respects is enforceable
(b) if the party against whom enforcement is sought admits in
his pleading, testimony or otherwise in court that a contract for
sale was made, but the contract is not enforceable under this
provision beyond the quantity of goods admitted; or
(4) Goods for which payment has been made and accepted or which have been received and
accepted.
UCC 2-201(3)(c)
(3) A contract which does not satisfy the requirements of subsection (1)
but which is valid in other respects is enforceable
(c) with respect to goods for which payment has been made and
accepted or which have been received and accepted (Sec. 2-
606).

I. INTERNET AGE ISSUES

a. Item arrives with lots of paperwork (that is not read)
b. “Shrinkwrap” agreements
 i. Additional terms which are included in the product’s packaging
c. “clickwrap” agreements
i. The terms encountered when loading a program’s software on your
computer
d. Typically UCC 2-207 is applied to solve the disputes that arise with these issues
i. Arbitration clause shipped with computer is binding [hill v. gateway]
ii. Printed terms on computer software package not part of the agreement
[klocek v. Gateway]
iii. Shrinkwrap licence in product box is binding on buyer