UCC 2-207: ADDITIONAL TERMS IN ACCEPTANCE OR CONFIRMATION

Is the response a definite an seasonable expression of acceptance or a written confirmation?

Yes

Is it sent within a
reasonable time? No

No Yes

No K exists under Is UNLESS clause triggered - Is acceptance expressly made conditional on

2-207(1) assent to the additional or different terms/
Note: although UCC says additional and different terms, we assume drafters
were only talking about additional terms – conflicting terms are knocked out.

Yes No

K may be enforced under 2-207 (3) Has there been assent (implicit or Additional terms may be
Is there conduct by both parties which explicit) by the offeror to the included in K under 2-207(2)
recognizes the existence of a K for sale additional or different terms? Are both parties merchants?
although the writings of the parties don't
otherwise establish a K?
(S shipped goods and B accepted them) Yes No
No Yes
Additional
Noterm is Yes
not included in K
No K exists
under 2-207(1)
Offeror must explicitly assent to the Additional
additional term (even if one party is not terms become
a merchant) Has offeror explicitly part of the K,
assented to the additional term? except if falls
under
K exists with K exists with exceptions
those terms on those terms on No a, b, or c.
Additional term is
which parties which parties
not included in K
agree. agree. (a) & (c)..
Has the offeror
Supplementary Conflicting affirmatively
terms are terms “knock Yes indicated that
incorporated each other out” he does not No
under any other of the K so that want to include
provisions of neither enters Additional terms may be included in K under 2- the additional
UCC – “gap the K – 207(2) term in the K?
fillers” resulting gaps (b) Does the additional term materially alter the K?
filled by UCC
(Implied  Clauses that result in surprise or hardship if
Warranties of incorporated w/o express awareness by the other
merchantability party
/ fitness for  Comment 4: Examples of clauses that do
intended materially alter
purpose)  Comment 5: Examples of clauses that do not
materially alter
(disclaimer of warranty, arbitration clauses)

Additional term is K exists with

not included in K additional terms
Yes No