UCC § 2-207 decision tree
Mutual Assent · Sep 28
Floor. ~40 min: R2d § 50 acceptance + the mirror-image rule + Flender on UCC § 2-207(3) knockout.
Target. ~75 min: Floor + the counter-offer / request line (§§ 59, 61) + State DOT v. P&W on § 2-207(1)–(2) + mailbox-rule application + synthesis.
(1) Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.
(2) Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.
(3) Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.
R2d § 50(1): acceptance is a manifestation of assent to the terms of the offer, made by the offeree in a manner invited or required by the offer.
Two requirements:
An acceptance must comply with the requirements of the offer as to the promise to be made or the performance to be rendered.
At common law, the offeror is master of the offer: the acceptance must mirror the offer exactly. Any deviation is not an acceptance — it is a counter-offer that terminates the original offer.
R2d § 59. A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter-offer.
R2d § 61. An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to depend on an assent to the changed or added terms.
830 A.2d 1279 (Pa. Super. Ct. 2003)
Pennsylvania Superior Court
Rule. Under UCC § 2-207, when an offer and acceptance contain conflicting terms on the same subject, both conflicting terms drop out and default rules supply the gap. Forum-selection clauses that disagree are knocked out; jurisdiction is governed by background law.
674 A.2d 1239 (R.I. 1996)
Supreme Court of Rhode Island
Rule. An acceptance is not rendered counter-offer by terms that are immaterial or that the offer itself permits. Changes that do not alter the substance of the bargain or impose new burdens on the offeror leave acceptance effective.
Unless the offer provides otherwise,
(a) an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession, without regard to whether it ever reaches the offeror; but
(b) an acceptance under an option contract is not operative until received by the offeror.
R2d § 63(a): acceptance is effective on dispatch — the moment it leaves the offeree's possession. Revocations and rejections are effective on receipt.
The cross-over (R2d § 40): if the offeree sends a rejection first, then an acceptance, the mailbox rule is suspended — whichever the offeror receives first governs.
And the mailbox rule does not apply to option contracts: there, acceptance is effective only on receipt.
Erneste Ardente bid $250,000 for the Horans' residential property. After the bid was accepted, Ardente executed the purchase and sale agreement. His attorney returned the signed agreement plus a $20,000 check along with this letter:
"My Clients are concerned that the following items remain with the real estate: a) dining room set and tapestry wall covering in dining room; b) fireplace fixtures throughout; c) the sun parlor furniture. I would appreciate your confirming that these items are part of the transaction, as they would be difficult to replace."
The Horans refused to include those items and did not sign. Ardente sued for specific performance.
Was Ardente's letter a counter-offer or a valid acceptance with a collateral inquiry?
Ibrahim lost a federal-court suit attacking a New Jersey child-support order. He then sent a twelve-page letter to various officials titled "Conditional Acceptance for the Value/Agreement/Counter Offer to Acceptance of Offer," stating that he had "received your offer and accept[ed]" it, subject to conditions, primarily that the recipients justify the existence of various government agencies. The letter asserted that any failure would result in default and an obligation to pay $3.5 million.
Did Ibrahim's "Conditional Acceptance" letter constitute a valid acceptance?
Stretch problems from the chapter.
Rules. R2d §§ 50, 58, 59, 61, 63 (and § 40 cross-over) · UCC § 2-207.
Cases. Flender Corp. v. Tippins International (knockout) · State Department of Transportation v. Providence & Worcester Railroad Co. (immaterial variation).
Open question. The mirror-image rule controls the common-law side; UCC § 2-207 routes sales of goods. Class 10 walks the full § 2-207 tree branch by branch: when do additional terms join the contract, when do conflicting terms knock out, and what gap-fillers does the UCC supply?
Next class: UCC § 2-207, Battle of the Forms
_Mutual Assent_ · Sep 29
Read UCC § 2-207 and walk Flender and State DOT through every branch. Bring a one-line answer: does conduct save the deal when the writings disagree? When do additional terms become part of the contract?