Where the terms in two forms are contradictory, each party is assumed to object to the other party's conflicting clause. Mere acceptance of the goods by the buyer is insufficient to infer consent to the seller's terms under the language of subsection Mass. Gen. Laws ch. 106, § 2-207(1). Nor do such terms become part of the contract under subsection (2) because notification of objection has been given by the conflicting forms. See § 2-207(2)(c).
Appellee buyer purchased thermostats from appellant manufacturer for installation in water dispensers. Several of the dispensers subsequently caused fires which resulted from defects in the sensors. Appellee filed suit against appellant in order to recover costs incurred from the fires. Before trial, the district court denied appellant's motion for partial summary judgment and subsequently certified to the court the question whether Mass. Gen. Laws ch. 106, § 2-207 had been properly applied. Appellee argued that appellant's language limiting warranties implied at law was proposed as an addition to, but was not in conflict with, the explicit terms of its form which provided that the contract was governed exclusively by the terms included on the purchase order and that all remedies available under state law were available to appellee. The court affirmed the order denying appellee's motion for partial summary judgment and the case was remanded.
Was Mass. Gen. Laws ch. 106, § 2-207 properly applied to the cause of action brought by appellee buyer against appellant manufacturer?
The terms of the contract consisted of those terms on which the writing of the parties' agreed, together with any supplementary terms incorporated under any statutory provisions. Any additional terms did not become part of the contract under Mass. Gen. Laws ch. 106, § 2-207 because notification of objection to conflicting terms was in the purchase order form only, and the new terms had materially altered those in the offer.