Uniform Commercial Code 2-207

One common provision of the UCC is section 2-207. Under the common law the offer and the acceptance had to mirror each other and if the offer and the acceptance did not we do not have a valid contract. This lead to the Battle of the forms and the last shot doctrine, which means the last person to send a form his terms would govern. For Example, if we applied common law and if the last form that was sent by the buyer had an arbitration provision but none of the other forms had the arbitration provision, that was sent, the Buyers Arbitration Term would be binding term of the contract. However, if we are applying the UCC 2-207 the result would differ. To determine which terms govern, under the UCC if the offeree sends a definite seasonable expression of acceptance without any proviso language we have a contract, under section 2, any additional terms between non merchants are merely proposals. In our case, we have merchants and therefore the new terms are automatically part of the contract unless 1) they materially alter the contract, 2) the other party objects, or 3) there is language in the contract against this. If the seller never objected to the arbitration provision, and there is nothing in the language of the K against arbitration, the issue becomes does arbitration materially alter the terms of the contract? If it does then the arbitration provision would drop out and this court would then be the proper venue for this matter. Arguments can be made on both sides that this provision materially alters or does not alter the terms of the K. Buyer will obviously say it does not since he wants to incorporate the term. Seller will say it does if he wants to litigate in court. Ultimately It would be reasonable for the court will to say that an arbitration provision in a K for the sale of tires does not materially alter the terms of the K. However, it all comes down to what did the contestants bargain for in their bargained for exchange.

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