When a merchant buying goods from another merchant adds terms to the acceptance that were not...

When a merchant buying goods from another merchant adds terms to the acceptance that were not in the original offer by the selling merchant, what happens to the offer? Explain.

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Expert Solution

The "mirror image rule" states that if you are to accept an offer, you must accept an offer exactly, without modifications; if you change the offer in any way, this is a counter-offer that kills the original offer and the original offer cannot be accepted at a future time.

However, a mere request for information about the terms of the offer is not a counter-offer and leaves the offer intact. It may be possible to draft an enquiry such that it adds to the terms of the contract while keeping the original offer alive.

Under the Uniform Commercial Code (UCC) Sec. 2-207(1), a definite expression of acceptance or a written confirmation of an informal agreement may constitute a valid acceptance even if it states terms additional to or different from the offer or informal agreement. The additional or different terms are treated as proposals for addition into the contract under UCC Sec. 2-207(2). Between merchants, such terms become part of the contract unless:

a) the offer expressly limits acceptance to the terms of the offer,
b) material alteration of the contract results,
c) notification of objection to the additional/different terms are given in a reasonable time after notice of them is received.

Material is defined as anything that may cause undue hardship/surprise, or is a significant element of the contract.

If there is no contract under 2-207(1), then under UCC Sec. 2-207(3), conduct by the parties that recognize there is a contract may be sufficient to establish a contract. The terms for this contract include only those that the parties agree on and the rest via gap fillers.

keosha answered 3 months ago

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