Jane K. Winn, professor at the University of Washington School of Law, recently asked me the following question:
I’m trying to create an exercise for my first-year contracts class that would teach the students how to draft a good “Battle of the Forms” UCC § 2-207 term to block application of the counterparty’s boilerplate. The “Battle of the Forms” problem arises in sale of goods transactions when each party sends boilerplate terms to the other, but neither party ever signs the other’s terms.
Here are two examples of sale-of-goods boilerplate terms (based on actual purchase orders/acknowledgements posted to the Internet) that attempt to track the language of UCC § 2-207 to block the application of the counterparty’s terms:
- Seller/offeree acknowledgement based on UCC § 2-207(1): “Seller’s acceptance is expressly made conditional on Buyer’s assent to the terms and conditions set forth herein”
- Buyer/offeror acknowledgement based on UCC § 2-207(2)(a) & (c): “Seller’s acceptance of this offer is expressly limited to these terms, and any terms contained in Seller’s acknowledgement that are inconsistent with them shall be deemed to be objected to by Buyer”
What language would you use in these contexts?
I was pleased to receive Jane’s inquiry: I’d been pondering that I’m an article 2 ignoramus, and her question forced me to become a bit less of an ignoramus. (If you want a quick introduction to “battle of the forms,” I suggest that you consult this post by @TheContractsGuy.)
My starting point is, as always, What category of contract language should I use? Here’s what I came up with:
- Condition, using language of obligation: For this acceptance to be effective, the Buyer must accept all its terms.
- Language of policy: This acceptance will be effective only if the Buyer accepts all its terms.
- Condition, using language of obligation: To be effective, the Seller’s acceptance of this offer must not contain any additional terms.
- Language of policy: The Seller’s acceptance of this offer will be effective only if it contains no additional terms.
I didn’t track the UCC language, as what matters is the substance, not the form. Copying the clunky drafting of statutes is not a route to clarity.
What do you think?