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ii

ADDITIONAL TERMS.  (UCC § 2-207(2))

1

They’re proposals for addition to K.  They become part of K UNLESS:

a

Offer expressly limits acceptance to terms of offer

b

OR add’l terms would materially alter the K

c

OR offeror notifies offeree w/in r’ble time that he rejects add’l terms

iii

DIFFERENT TERMS.  (UCC § 2-207(2))

1

Knockout rule

D

Treat confirmation notes like add’l / diff terms above.  But remember K may be formed prior to exchange of confirmation notes

IV

Two common situations:

A

Valid K formed, followed by written confirmation w/ add’l terms

1

Merchants: new terms become part of the K unless MATERIAL or written objection not given w/in r’ble time.  Diff terms knocked out

B

Discussion w/o agr’t, followed by written confirmation w/ add’l terms (w/o express assent lang)

1

Merchants: confirmation form acts as a counter-offer.  If followed by perf w/o express acceptance of add’l terms, treat as valid K w/ acceptance not conditional on assent

V

Battle of forms and S/F

A

If issue comes up where you have a possible oral K followed by exchange of forms, ignore S/F for purposes of determining whether oral discussions resulted in a K for § 2-207 analysis

VI

What’s included in UCC implied warranties?

A

Warranty of merchantability

1

No limit on type of damages seller will be responsible for

B

Warranty of suitability for particular purpose

Interpretation

I

Gen’y

A

OUTWARD EXPRESSION of intent controls; mental assent not req’d.  (Lucy)

B

Law imputes to person intention corresponding to R’BE INTERP of his words and acts by the addressee.  (Lucy)

1

R’ble addressee is presumed to know all that actual addressee knew

C

Areas of inquiry, in order of preference:

1

Parties’ language and conduct in forming agr’t

2

Course of perf

3

Course of dealing

4

Trade usage

II

Exceptions

A

If parties attach diff meanings to term, and neither party knows that the other holds a diff meaning, and two meanings are not equally r’ble, more r’ble meaning prevails.  (See Rest § 201(2)(b)) (Lucy)

B

If parties attach diff meanings to a term, neither party knows that the other holds a diff meaning, and two meanings are equally r’ble, neither meaning prevails.  (See Rest § 201(1)) (Peerless)

C

If both parties attach same meaning to a term, that meaning prevails even though it is unr’ble.  (See Rest § 201(1)) (dicta in Mcc-Marble)

D

If parties attach diff meanings X and Y to a term, and A knows B attaches meaning Y while B doesn’t know A attaches meaning X, meaning Y prevails even if it is less r’ble than X.  (See Rest § 201(2)) (Mcc-Marble)

III

Missing / indefinite terms

A

Where a term in a K is missing, term may not be supplied by conjecture.  (Morse)

1

But if the term may r’bly be inferred from circums and parties’ intent, ct may read a term that is r’ble in circums into the K.  (Haines) (Morse) (Rest § 204)

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