2. Otherwise, is upon receipt. Mailbox rule no apply.
Ex. Offer is email. If acceptance is by letter, then, effective upon receipt since not the fastest way. If had accepted by email, then upon dispatch, even if email never received by offeror.
When offer is open to be accepted as a unilateral or bilateral: 1. when accepted as bilateral, then accomodation shipment of non conforming goods is breach.
2. if taken as unilateral by simply shipping an accomodation shipment of non conforming goods, is a counter offer. (Rigos Q1-63)
Revocation of unilateral offer (Rigos Q1-293)
Unilateral contract is irrevocable once performance begun. Offeree can finish (then contract formed and can collect compensatory damages), or stop (no enforceable contract).
1. Additional terms
2. Different terms
1. Merchant-nonmerchant - contract forms, but addnl terms must be assented to, to be part of contract. Otherwise, original terms prevail.
Between merchants - Addntl terms automatically becomes part of the contract UNLESS a. expressly limits acceptance to terms of offer; b. materially alters or c. offeror objects w/in reasonable time. Otherwise, original terms prevail.
2. Different terms: never automatically in.
Knock out rule applied so that conflicting clauses knock each other out, and UCC gap filler provisions applied where applicable (ie implied warranty of merchantability, payment upon delivery).
1. sine qua non rule in tort/ but for
sine qua non rule in tort: "without which it could not be"; essential element; but for rule
The merger clause states that the contract is a
complete statement of the agreement and that any previous agreements or
negotiations, oral or written, that are not contained in the contract
are not part of it. The purpose of this clause is to show that both
parties completely understand all of the terms that were agreed upon
and that neither party can alter the conditions after the contract has
been signed. It is also sometimes called an integration clause.
Example: Andy and Greg made an oral agreement that Andy
would pay Greg $20 if he mounted Andy’s new TV. Greg wrote out a
contract, which contained a merger clause, and changed the fee to $25.
By signing the new contract, not only did Andy agree to pay the new
price, but he also agreed that the oral contract with the lower price
was no longer valid.
Sample – Purchase Agreement:
This Agreement is the entire agreement between the parties and
supersedes all earlier and simultaneous agreements regarding the
subject matter, including, without limitation, any invoices, business
forms, purchase orders, proposals or quotations. This Agreement may be
amended only in a written document, signed by both parties.