UCC 2-207 · Law Skool Advantage

UCC 2-207

Whether you call it battle of the forms, the knockout rule or simply 2-207, this rule is one of the most complex things that you will ever learn in law. In my classes this week this is what we focused on.

Do you have tips or things that have worked to help you understand this complex rule? If so, please share in the comments.

Here are my tips:

Remember that the transaction must be for the sale of a good or this rule never applies
If you can accept under 2-206 and use the mirror image rule acceptance concept do that, and do not go into this doctrine unless you need it
The triggers to know that you need to address 2-207 include an acceptance that contains different or additional terms. If you see that then that means you need to address acceptance under 2-207 (1)
Do not hit sections 12 and 3 of 2-207 at the same time because you will not ever need all three of them
Always start off with 2-207(1)) by itself. In this provision, you were looking for your actual acceptance. If you have a seasonable or definite expression of acceptance or written confirmation, that is sent within a reasonable time, and no provisional language requiring acceptance… Then you have acceptance with different additional terms under section one.
If you find acceptance in 2-207-1, then go to 2-207–2 to determine whether the difference or additional terms will become part of the contract. If the transaction is not between merchants, according to UC 2–104, then the additional term does not become part of the contract.
However, if the contract is between merchants, the additional term becomes part of the contract, unless one of three things happens. The other merchant must object to it, there must be provisional language in the offer, limiting acceptance to the terms contained in the inside of it, or the additional term as materially alter the original offer
Material offer is defined in the comments underneath 2–207. It is defined as undo hardship or surprise. So to argue material alteration use the facts to show that it will cause surprise to the other party by not ascending to it and including it in the contract And let that be your driver as to whether it should be excluded or not
Now, if you did not find acceptance in 2–207 section one, but the parties are still acting like they have a contract, even though it’s not legally binding, then and only then do you go to 2–207. Now, if you read the language of 2–207, you will see that the conduct accepts the contract however the terms of the contractor limited to only those that have been agreed-upon or are implied terms. So that means that the additional or different term that was proposed during acceptance, never becomes part of the contract under 2–207 section 3.
My final tip is to remind you to make sure to do a merchant analysis before you start addressing 2–207 section 2. You use 2–104 to address whether or not the parties involved in the transactions are considered merchants is for purposes of this transaction. There are three ways that they can be considered a merchant. If they sell the goods of the kind, if they hold themselves out as an expert, or they hire a third-party expert.

I said, this is a very complex rule. It’s so ironic because we have the rule and we don’t need to go find it in our cases because it is a statute however, trying to understand it, deconstruct it, and apply it to fax is very complex and will take a lot of practice.

Hope you all have a great day and have fun learning this beautiful doctrine!

Prof. Kim

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UCC 2-207