Understand The Battle Of The Forms In Under Ten Minutes!

Understand The Battle Of The Forms In Under Ten Minutes!

Are you preparing for the bar exam and struggling to understand the Battle of the Forms?  Check out this video for a quick and easy explanation!

Understand The Battle Of The Forms In Under Ten Minutes!

One rule that is commonly tested that is very confusing is the Battle of the Forms, or UCC 2-207.  This rule applies to contracts that are governed by the UCC (contracts for the sale of goods).  The rule is applicable when the offeree’s acceptance does not mirror the offeror’s offer, but rather has different or additional terms. Rather than simply reading our steps below, we recommend you watch the video as well! This will give you a true overview of the battle of the forms in less than ten minutes!

Step One: Is there a contract?

The first step is to determine whether the purported acceptance is made expressly conditional on the offeree’s acceptance of the different or additional terms.  If this is the case, then the “acceptance” is not really an acceptance.  Instead, it is a counteroffer and no contract is formed until the original offeree accepts the counter-offer.

Let’s say, though, that the acceptance is not expressly conditional on the offeree’s asset to the different or additional terms.  If this is the case, the parties have a contract!

Step Two: Are the additional terms part of the contract?

Now the question is whether the additional terms become part of the contract.  In order for additional terms to become part of the contract, the following four elements must be met:

1. Both parties must be merchants.
2. The original offer was not limited to its terms.
3. The additional terms do not materially alter the contract.
4. The offeree does not object to the additional terms within a reasonable time.

If all four elements are met, the additional terms become part of the contract!

Step Three: If the acceptance contains different (rather than additional terms), which terms are in the contract?

What if the terms are different, rather than additional?  Some jurisdictions look for the same four elements that must be met for additional terms to be part of the contract (if the four elements are met, the offeree’s new terms govern; if the elements are not met, the offeror’s original terms govern).

Other jurisdictions follow the Knock-Out Doctrine, which states that both terms (the original and the different term) get “knocked out” of the contract, and the relevant UCC gap filler becomes a term of the contract.

For a longer explanation of this doctrine, as well as relevant examples of each step, check out the video below!

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