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Leonard Pevar Co. v. Evans Prods. Co - 524 F. Supp. 546 (D. Del. 1981)

Rule:

U.C.C. § 2-207 recognizes that a buyer and seller can enter into a contract by one of three methods. First, the parties may agree orally and thereafter send confirmatory memoranda. Second, the parties, without oral agreement, may exchange writings which do not contain identical terms, but nevertheless constitute a seasonable acceptance. Third, the conduct of the parties may recognize the existence of a contract, despite the previous failure to agree orally or in writing.

Facts:

Plaintiff sued defendant for breach of express and implied warranties in the sale of medium density overlay plywood, and the parties filed cross motions for summary judgment. The parties agreed that they spoke on the telephone, that plaintiff placed an order to buy, and that the seller sent an acknowledgment making the contract contingent upon plaintiff's acceptance of all terms it contained, outlining a disclaimer of warranties, and limiting buyer's remedies, but they disagreed as to whether an oral agreement was formed between them. The parties filed cross-motions for summary judgment.

Issue:

Could the plaintiff validly claim that there was a breach of express and implied warranties of the contract based on the parties' initial telephone negotiation?

Answer:

No.

Conclusion:

The court denied summary judgment to both parties, holding that a genuine issue of material fact precluded summary disposition because the parties did not agree as to whether an oral offer was accepted. If no oral agreement was made, then the parties had engaged in conduct establishing the existence of a contract under which the court would supply any missing portions of the contract.

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