The Battle of the Forms

Acceptances with different or additional terms at common law 1. At common law, the mirror image rule means that an acceptance with different or additional terms is not effective and operates as a rejection and counteroffer on the different or additional terms. 2. Therefore at common law the terms of the contract are those contained in the last communication before acceptance of the goods, the last shot rule. UCC 2-207, for sales of goods 1. An acceptance is effective even if the acceptance states different or additional terms unless acceptance is expressly made conditional on such terms. 2. Between merchants such terms become part of the contract unless a. The offer expressly limits terms of acceptance b. The terms would materially alter the contract, meaning they would result in surprise or hardship to the other side c. The offeror gives notification of objection within a reasonable time 3. Conduct by the parties can establish a contract where the writings are insufficient. The terms of the contract are those on which the parties writings agree. Notes on UCC 2-207 1. If acceptance is expressly made conditional on different or additional terms we have not an acceptance but a rejection and counteroffer on the different or additional terms. 2. 2-207(1) refers to additional or different terms; 2-207(2) refers only to additional terms. Courts respond to this incongruity in one of three ways: a. Mustve been a drafting error, apply 2-207(2) to different terms as well b. Take 2-207(2) literally, different terms do not become part of the contract c. Knockout rule, terms cancel each other out, revert to UCC gap fillers