Issue: Has a contract been formed?
Rule: Section 2-204 of the UCC states a contract for the sale of goods may be made in any
manner sufficient to show agreement. Section 2-207 of the UCC states ‘A definite and
seasonable expression of acceptance [or a written confirmation that is sent within a reasonable
time] operates as an acceptance even though it states terms additional to or different from
those offered or agreed upon.’ (Kelly, 2011, page 64)
Analysis: Sean’s Auto Body (“Buyer”), sent the seller, Sunstop Breaks, Inc. a purchase order for
20,000 brake pads at $10 per pad for its August 15 shipment. There was also boiler plate
th
language included that stated, ‘delivery is to be made by buy to seller’s place of business.’ This
would be the offer. The seller returned an acknowledgement agreeing to everything except the
boiler plate language, which they altered to state ‘buyer is to pick up order at seller’s
warehouse.’ This would be considered acceptance even though terms were different.
Conclusion: The UCC does not follow the mirror image rule so the acknowledgement agreement
would most likely constitute a contract.
Issue: If so, what are the terms?
Rule: Under Section 2-207(2) a proposal to modify the contract would be deemed accepted
between merchants unless 1. The offer expressly limits acceptance to the terms of the offer, 2.
They materially alter it, or 3. Notification of objection to them has already been given or is given
within a reasonable time after notices of them is received. (Kelly, 2011, pages 64-64)
Analysis: On August 15 , the buyer doesn’t receive any brake pads. The seller refuses to send
th
them and notes that the buyer agreed to pick up. The modification that the seller made to the
boiler plate language would be accepted as an offer since they didn’t limit the terms of the
original offer. They didn’t change price, quantity, etc. The buyer also didn’t object when the
seller sent the acknowledgment agreement back. Silence in response to the proposal usually
rejects the changes, but between merchants, the section permitted proposal to become part of
the contract without an express acceptance. (Kelly, 2011, page 64)
Conclusion: The terms of the last agreement between the buyer and seller would prevail. Those
terms would be that the buyer is to pick up the break pads from the seller for $10 a piece on
August 15 .
th
