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Unformatted text preview: Jack Ko Analytical Flow Chart for Battle of the Forms under UCC 2-207
Buyer needs to expressly assent; otherwise, 207(3) may apply Yes Seller's ACK or Invoice "knock out" rule applies and Code provisions fill in the gaps Note 1: If K is not between merchants, "the additional terms are to be construed as proposals for addition to the contract" and would drop out unless expressly accepted by the buyer. Note 2: arbitration clause and warranty disclaimers are typically viewed to "materially alter" the terms of K under 207(2)(b). Note 3: 207(3) only applies when there are two writings that do not agree but K is formed through performance rather than 207(1). Buyer's Purch. Ord.
No Accepta nce under 207(1)? Yes Diff Add'l Note 1 Buyer's (Of'or) terms on P.O. applies Additio nal or differen t terms? No This is a new offer THERE IS NO K. No Yes K terms based on agreed upon terms plus Code gap fillers Expressly condition al (counteroffer)? Additional terms drop out of the K Survive 207(2) (a), (b), & (c)? No K formed by performa nce under 207(3)? Yes Additional terms become part of the K ...
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- Spring '08