Black-letter propositions
- 01
Between merchants, additional terms may enter automatically unless the offer limits acceptance, the term materially alters, or timely objection occurs.
- 02
For a nonmerchant, additional terms are proposals requiring assent.
- 03
Different terms receive varying approaches; the exam may specify knockout or offer-controls treatment.
- 04
If writings do not form a contract but conduct recognizes one, agreed terms plus UCC gap fillers govern.
- 05
Open price, delivery, and time terms can be supplied, but quantity usually cannot except through requirements or output language.
Use this attack sequence under time
Frame the issue
Find offer and responsive document.
Resolve the next checkpoint
Is response definite and expressly conditional?
Resolve the next checkpoint
Classify parties as merchants for the transaction.
Resolve the next checkpoint
Classify term as additional or different and test material alteration.
Finish the conclusion
If no writings contract, test conduct and knockout.
Common wrong turns
- A boilerplate statement that terms are 'subject to' conditions may not be expressly conditional.
- Warranty disclaimer, arbitration, and substantial-remedy changes often materially alter.
- Merchant status is issue specific, not merely business ownership.
Worked example
A merchant buyer orders 100 widgets. The seller promptly accepts but adds an unexpected clause eliminating all consequential damages.
A contract forms. The added clause likely materially alters the bargain and therefore does not automatically enter between merchants absent express assent.
Practice this topic
UCC 2-207 in three subsections
UCC 2-207(1) says a definite and seasonable expression of acceptance or a written confirmation sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered, unless acceptance is expressly made conditional on assent to the additional or different terms. Section 2-207(2) says the additional terms are proposals for addition, and between merchants they become part of the contract unless the offer expressly limits acceptance to its terms, they materially alter it, or notification of objection has been or is given within a reasonable time.
Section 2-207(3) says conduct by both parties recognizing the existence of a contract is sufficient to establish one even though the writings do not, and in that case the terms consist of those on which the writings agree, together with supplementary terms incorporated under other provisions of the Act.
Gap fillers
Gap fillers come from other sections. UCC 2-305 supplies a reasonable price at the time for delivery when the price is open, and 2-306 measures output and requirements by good-faith actual figures. UCC 2-204(3) keeps the contract from failing for indefiniteness when terms are left open but the parties intended to contract and there is a reasonably certain basis for a remedy.
On an exam, sort the forms by asking what 2-207(1) does with the acceptance, what 2-207(2) does with each additional term, and whether 2-207(3) is needed because the writings do not form a contract.
Frequently asked questions
What is the controlling rule for battle of the forms and gap fillers?+
A UCC acceptance can form a contract despite variant terms; merchant status, express conditionality, material alteration, objection, and conduct determine the operative terms.
How should I analyze battle of the forms and gap fillers on the bar exam?+
Find offer and responsive document. Is response definite and expressly conditional? Classify parties as merchants for the transaction.
When does an acceptance with different terms still operate as an acceptance?+
When it is a definite and seasonable expression of acceptance, unless acceptance is expressly made conditional on assent to the additional or different terms, under UCC 2-207(1).
When do additional terms become part of a merchant contract?+
Unless the offer expressly limits acceptance to its terms, the terms materially alter it, or objection is given within a reasonable time, under UCC 2-207(2).
What happens if the writings do not form a contract?+
Conduct by both parties recognizing the contract can establish one, and its terms are those on which the writings agree plus supplementary UCC terms, per 2-207(3).
Which section supplies a price when none is set?+
UCC 2-305, which makes it a reasonable price at the time for delivery if nothing is said or the parties fail to agree.
How does UCC 2-204(3) help with gaps?+
It says a contract does not fail for indefiniteness if the parties intended to contract and there is a reasonably certain basis for giving an appropriate remedy.