UCC 2-207 Does the Fact Pattern

ANALYSIS Show: 1) Same terms or 2)

Additional and Different
If same Terms exist in both the Offer Terms Additional or Different Terms exist
and the Acceptance, then a contract between the Offer and the
is created on the terms of the Offer Acceptance = a UCC § 2-207 issue.
and the Acceptance. Go on to the next two possible
No UCC § 2-207 issue exists. scenarios

A definite and seasonable expression A definite and seasonable

of acceptance was given (i.e. offeree
expression of acceptance was
clearly accepted). Go on to examine
the possible 2 scenarios about that
NOT given (i.e. if offeree didn?t
acceptance: clearly accept).

Acceptance is NOT
Acceptance IS expressly
expressly conditional on
conditional on assent to
assent to additional or
additional or different terms
different terms. 2-207(1) A contract is not created by the
2-207(1) after unless clause.
BEFORE unless clause exchange of offer and
acceptance under UCC
2-207(1). BUT, a contract may
Acceptance operates as a
be created by conduct
counteroffer. Go on to the
2-207(3). Ask if the facts fall
A contract is created following 2 scenarios below:
within the following 2
under UCC 2-207(1). ADDITIONAL scenarios:
Additional and Different TERMS FOR K
terms will be determined BETWEEN 2
by the following: MERCHANTS:
Additional Terms If the other party
are included in If the other party
DOES NOT
contract UNLESS: expressly and
expressly and
1) the offer expressly unequivocally
unequivocally
limits accepotance to accepts
accept, a
the terms of the offer additional and
OR 2) the additional contract may still
different terms, a
terms materially alter be forced by
contract is
the contract OR 3) conduct under
formed of terms
notification of UCC 2-207(3). Go Parties' conduct
objection to them
of the counter Parties' conduct
to the following DOES NOT
has already been offer. indicates
analysis: indicate
given or is given existence of a
existence of a
within a reasonable contract?
time after notice of
contract?
them is received.

ADDITIONAL
TERMS FOR K
NOT BETWEEN
MERCHANTS:
If 1 or more parties is
not a merchant, If so, a contract by
additional terms are NO CONTRACT
conduct exists under
NOT included in the EXISTS
UCC 2-207(3).
contract unless that
party's assent to
inclusion of that term
is separately
expressed.

The terms of this

DIFFERENT or contract are those terms
CONFLICTING that the parties agree on.
TERMS: 1) treated Conflicting and
the same as additional terms are
additional terms and knocked out and
apply 2-207(2) OR 2) replaced by UCC gap
both knocked out fillers.
and replaced by UCC
gap fillers OR 3)
different terms drops
out and offeror's Can also consult trade Parol evidence rule if
term governs usage, course of there's enough in
dealings, course of writing to partially
performance (2-208). integrate