Restatement | Common Law Exchange of Services Rest.

§ 59 – purported acceptance which

B (offeree) accepts terms adds qualifications = counteroffer
exactly as the offer states K = A’s Terms Rest. § 61 – acceptance which
– Mirror Image Rule
requests/suggests change of terms not
invalidated unless acceptance made to
A makes an offer B (offeree) conditional on assent to the
No K
(as offeror) rejects A’s offer
changed/added terms

A (Counteroffer offeree) K = B’s Counteroffer

B (as offeree) accepts terms
Terms
rejects A’s offer exactly as stated
&
Makes A (Counteroffer offeree) rejects
counteroffer B’s counteroffer No K
(B is new offeror)

UCC § 2-207 | Sale of Goods

2-207(1) 2-207(2) 2-207(3)

K Formed
Not Additional terms are to be construed as proposals for addition to the contract.
Go to Between
Definite & seasonable 2-207(2) Merchants These terms are only added in if the offeror assents to the new terms. If the parties fail to
expression of acceptance to reach an
determine agreement through
contract Terms become a part of the contract unless: words, then their
terms conduct may be
(a) The offer expressly limits acceptance to the Offeror’s terms only; no sufficient to
K formed Between terms of the offer terms added in support the finding
orally Merchants (b) They materially alter it Materially altering terms not of a contract.
Written confirmation Determine (comment 4 & 5) added in
terms by (c) objection to term already given or is given = Contract
Terms that offeror objected
2-207(2) within a reasonable time after notice of them is (Agreed upon
to not added in
received (comment 6) terms + gap fillers)
Acceptance expressly No K
Form adds additional terms that are expressly conditional on assent to them;
conditional on assent to Go to
additional or different terms 2-207(3) receiver does not assent; but the K is formed through conduct →2-207(3)
 Klocek v. Gateway, Inc. (Non-Merchant Additional Terms) [Oral]
Leonard Pevar Co. v. Evans Products Co. (Between Merchants) Oral agreement to buy computer; ∆ subsequently sent form with additional term;
If asking Was the form was an acceptance or written confirmation cite.
UCC § 2-207 | Sale of Goods K between merchants 207(2) ∆ did not tell π that transaction was conditional upon assent to
the additional terms, because π not merchant additional term is
only proposal, so not included in the contract
A makes B (1)
an offer (offeree) Subsequent Written
(original Contract Confirmation with Additional terms are to be
accepts Created additional terms construed as proposals
offeror) orally Klocek v. Gateway No Klocek v. Gateway, Inc (Additional
Klocek Terms in Box)

B’s Terms added in,

(2) Between Yes unless (a), (b), or (c)
Counteroffer B gives definite Merchants Pevar apply
Rejection & seasonable Contract (2-104)?
Not seasonable expression of Leonard Pevar
acceptance,
Not definite
with new terms
expression
No A’s offer expressly limits B’s new terms A already
acceptance to original materially alter the objected to new
offer’s terms- Leonard Pevar contract Leonard Pevar terms
Did B make
acceptance
conditional
on A’s assent Then, only A’s
to new terms? original terms Then, terms that
included materially alter Objected to
Yes contract not terms not
No contract Pevar No included added in
(no acceptance) contract
( 2-207(1))
(3)
Leonard Pevar Co. v. Evans Products Co. (Lumber Purchase Materially Alter) Parties’ conduct Contract =
Material Terms would result in surprise or hardship for other party supports the Agreed upon
Examples: Clause negating standard warranties; Clause for unilateral cancelation; clause finding of the terms + Gap
unreasonably restricting time for complaints; Limits on damages; Exculpatory clauses; Dispute contract fillers
resolution (arbitration, forum selection, choice of law)
Leonard Pevar
Immaterial Terms would not substantially change the agreement
Examples: clause allowing exemption from contract due to causes out of parties’ control; clause
stating trade norms explicitly; a clause providing for inspection; a clause providing interest on
overdue invoices