Contract Drafting Advice: The “Battle of the Forms” Demystified

Posted on 09-27-2017

By: Timothy Murray, Murray, Hogue & Lannis.

SECTION 2-207 OF THE UNIFORM COMMERCIAL CODE (UCC) was supposed to resolve these questions: (1) Is a contract formed when parties exchange forms that contain nonmatching terms and the parties don’t sign off on a single document? (2) If so, what are the terms of that contract? These questions are of monumental importance to American commerce given the widespread practice of contracting for the sale of goods via the exchange of preprinted forms, but the answers provided by § 2-207 are anything but satisfying, to put it charitably.

Section 2-207 has been called “a defiant, lurking demon patiently waiting to condemn its interpreters to the depths of despair”;1 “incomprehensible”;2 and “a complete disaster” that was the product of “a miserable, bungled, patched-up job . . . .”3 Its intentions were grand but it was poorly drafted, and it has cut a swath of confusion that has confounded the commercial bar for more than half a century.

In the 1990s, as part of the well-known effort to revise UCC Article 2, the UCC’s permanent editorial board proposed an amended § 2-207 based on the ideas of my Corbin on Contracts Desk Edition co-author, Professor John E. Murray, Jr.4 That would have been a marked improvement, but the revised Article 2—including the much-improved § 2-207—died on the vine.

A sea of ink has been spilled to describe this mess, but a short article that presents the battle of the forms in a nutshell might help untangle § 2-207’s daunting convolutions for the practitioner who doesn’t have time to read a treatise about it.

But be forewarned, the following is not for the faint-hearted—the subject is jaw-droppingly confusing.

An All-Too Common Scenario

Consider a common sale of goods transaction. The parties agree on the essential business terms (the identity of the product being bought and sold, quantity, price, and delivery terms). The buyer sends the seller a purchase order form with this critical commercial information on it, but on the back of that form are preprinted, standardized terms and conditions—sometimes called “boilerplate,” or more pejoratively, “legalese.” These terms are drafted by the buyer’s lawyers but they’re not specific to the transaction. They’re presented in print so small, it is painful to read them.

The seller receives the buyer’s form and responds by sending back its acknowledgment form that promises to ship the product referenced in the purchase order. But on the back of that form are the seller’s own preprinted, standardized terms and conditions, which are very different from the buyer’s. Among other things, the seller’s terms exclude consequential and incidental damages, disclaim implied warranties, set forth a limited 90-day warranty, promise to repair or replace any defective part of the product as the “sole and exclusive remedy,” and require that all disputes between the parties be resolved in arbitration in the county of the seller’s principal place of business. The buyer’s purchase order was silent on each of these terms.

Even though the parties have not signed off on a single document, the seller ships, and the buyer accepts the goods. Nobody bothers to read the other party’s standardized terms, much less tries to figure whose boilerplate governs the transaction—until there’s a problem with the product.

And this is perhaps the most remarkable thing about the battle of the forms; for contracts formed via the exchange of standardized, preprinted forms, the contract cannot consist of both parties’ boilerplates. The fact is, a staggering percentage of carefully drafted terms and conditions will have no contractual significance—yet this doesn’t seem to be a concern to a lot of businesspeople or their attorneys.

Common Law

Under the common law, in order to form a contract, the terms of the acceptance had to match the terms of the offer exactly—this was called the matching acceptance or mirror image rule. If the terms of the response to the offer deviated from the offer in any manner, the response was not an acceptance but a rejection of the offer and a counteroffer that created a brand new power of acceptance in the original offeror.5

It must be emphasized that to form a contract under the common law, all of the terms of the offer and acceptance had to match: (1) the terms that the parties consciously considered—subject matter, quantity, price, and delivery terms (Professor Karl Llewellyn, chief architect of the UCC, principal draftsman of Article 2, and devoted protégé of Professor Corbin, famously called these “dickered terms”6) and (2) the so-called boilerplate terms typically found in the fine print of preprinted, standardized forms that are very often ignored by the parties— such as disclaimer of implied warranties, limitations and exclusions of the default remedies provided by law, choice of law, choice of forum, and mandatory arbitration clauses. Boilerplate terms often aren’t pertinent unless a problem arises with the goods that are the subject of the deal.

In a battle of the forms scenario involving the sale of goods at common law, where the parties exchanged forms that did not match exactly, no contract was formed. Nevertheless, if the parties were in agreement on the dickered terms, they typically proceeded to perform the transaction anyway, often blissfully unaware that the exchange of forms did not create a contract. When the goods were shipped and accepted, the parties had a contract—after all, the goods weren’t shipped as a gift.

But what were the terms of that contract? Under the common law, the party that sent the last form was deemed to have made an offer, based on the terms of the document it sent, that was accepted by the other party’s performance.

For example, if the buyer’s purchase order constituted the offer (as was usually, but certainly not always, the case), the seller’s acknowledgment form constituted a rejection and a counteroffer. But if the seller proceeded to ship and the buyer accepted the goods—which was common—the buyer was deemed to have accepted both the goods and the seller’s counteroffer since the seller fired the last shot. Not surprisingly, this was called the last shot rule.7

The problem? The contract based on the seller’s boilerplate had no relation to the parties’ intentions. The law “accorded undue advantages based on [the] fortuitous position[ ]” of the sender of the documents.8 Whoever was last, was first—happenstance selected the winner, a result that was as unjust as it was arbitrary. If the goal of contract law is to give effect to the intentions of the parties, this didn’t accomplish that.

The U.C.C.

The drafters of the UCC devised § 2-207 to rectify the common law’s failures, but they might have made matters worse. Section 2-207 sought to answer two questions: (1) Have the parties formed a contract? (2) And if so, what are its terms?

To understand § 2-207, it is necessary to resist the temptation to consider its subsections in the order they appear. Here is the lurking demon in its entirety:

(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

(a) the offer expressly limits acceptance to the terms of the offer;

(b) they materially alter it; or

(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

A Contract Can Be Formed Via the Exchange of Non-Matching Forms

Contract Formation

The great innovation of § 2-207 was “to reform the common law mirror-image rule and reject the last-shot doctrine which accorded undue advantage to the mere order in which forms were sent.”9 The first part of § 2-207 (1)—the words before the comma—announces that the mirror image rule will no longer prevent contract formation:

(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

U.C.C. § 2-207(1) (emphasis added).

Contracts can now be created via the exchange of nonmatching forms. A lot of responses that used to be counteroffers under the common law are now acceptances under the UCC.10 The new law merely recognized the reality that parties intend to enter into contracts even though the forms they exchange are not the mirror image of each other.

The words of § 2-207 before the comma presuppose that an offer has been made—not an invitation to make an offer, but a bona fide offer that created a power of acceptance in the offeree. That is, the offeror has “communicate[d] a manifestation of willingness to enter into a bargain that would justify another person in understanding that his or her assent to that bargain was invited and would form a contract.” Corbin on Contracts § 1.11 (2017). Either the buyer or the seller can be the offeror, but there must be an offer to trigger § 2-207.

“Mirror image” rule destroyed—but the dickered terms still have to match. Courts construe the language of § 2-207(1) before the comma (quoted above) to mean that the mirror image rule does not apply to different or additional boilerplate terms. But courts usually hold that the mirror image rule still applies to the dickered terms of the transaction, as described by Prof. Llewellyn (that is, the essential business terms—the description of the product, quantity, price, payment, and delivery terms). A response to an offer that alters the dickered terms in a significant way does not constitute “[a] definite and seasonable expression of acceptance” under § 2-207 (1), and a contract is not formed.11

But where the dickered terms largely match, even if the response to the offer includes additional or different boilerplate terms, there is “[a] definite and seasonable expression of acceptance”—and a contract has been formed.

What Are the Terms?

If the parties have exchanged forms containing non-matching boilerplate terms and a legally binding contract is formed under § 2-207 (1), what are the terms of the contract? The answer lies in §?2-207(2) (that subsection only applies if a contract is formed under 2-207(1)).12 That subsection provides:

(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

(a) the offer expressly limits acceptance to the terms of the offer;

(b) they materially alter it; or

(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

The Knockout View

Immediately, there is a significant problem with the words of §?2-207(2). Notice that § 2-207(1) recognizes that the forms exchanged can create a contract notwithstanding “different” or “additional” terms. But the language of § 2-207(2) only bothers to tell the reader how to treat “additional” terms—“different” terms are not mentioned in this subsection, and the text of the statute does not instruct the reader how to treat them.

The official comments to § 2-207 lend some support for the view that § 2-207(2) was intended to address both “additional” and “different” terms, but most courts have refused to read “different” into § 2-207(2).

To deal with this problem, apparently a majority of jurisdictions13 have followed the so-called knockout view. This view holds that expressly different terms are knocked out—excised—and any remaining gaps are filled by the UCC’s default terms.14

It must be underscored that the knockout view only applies where there are expressly conflicting terms. If an offer is silent as to a term but the document responding to the offer addresses it, the new term in the responding document is an “additional” term, and §?2-207(2) will become operative (in other words, the knockout rule does not apply to that term).

What Happens to “Additional Terms”?

The answer to this question depends on whether or not the parties are merchants.

Non-merchants. The first sentence of §?2-207(2) states that “[t]he additional terms are to be construed as proposals for addition to the contract.” If the parties are not merchants, then, presumably, like any other “proposal,” the offeror would have to agree to such a term to make it part of the contract.

Merchants. The second sentence deals with the situation involving merchants—meaning, “virtually anyone in business.”15 Section 2-207(2) states: “Between merchants such terms become part of the contract unless” one of the three enumerated exceptions in §?2-207(2) applies.

Offeror Can Limit Acceptance to Terms of the Offer

§2-207(2)(a) and (c) allows the offeror—the so-called master of the offer—to expressly limit acceptance to the terms of the offer in two ways:

(2) . . . Between merchants such [additional] terms become part of the contract unless:

(a) the offer expressly limits acceptance to the terms of the offer;

(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

“If the offeror expressly limits acceptance to the terms of the offer,” in either of the ways spelled out in §2-207(2)(a) and (c), “any additional term, material or immaterial, cannot become part of the contract.”16

Thus, if the offeror tracks the safe-harbor language of §2-207(2)(a) and (c) in its offer—or sends an objection “within a reasonable time” as permitted by §2-207(2)(c)—the offeror prevents additional terms in the offeree’s response from becoming part of the contract.

If the Offeror Fails to Limit Acceptance to the Terms of the Offer, § 2-207(2)(b) Applies

If the offeror fails to expressly limit acceptance to the terms of the offer and does not object to additional terms—that is, if the offeror fails to avail itself of § 2-207(2)(a) or (c)—any additional term automatically becomes part of the contract between merchants unless the term “materially alters” the offer under § 2-207(2)(b):

(2) . . . . Between merchants such [additional] terms become part of the contract unless:

(b) they materially alter it;

The issue of whether an additional term is a material alteration under § 2-207(2)(b) has become a significant source of litigation. As suggested above, it is a controversy that the offeror can avoid by tracking the language of §2-207(2)(a) or (c) in its offer or notification of objection.

An additional term is a material alteration if it “result[s] in surprise or hardship if incorporated without express awareness by the other party.” UCC §?2-207, Comment 4. Comment 5 to §?2-207 characterizes it as “unreasonable surprise.” One commentator explained: “Courts impose the burden of establishing a material alteration on the non-assenting party who is objecting to the inclusion of the additional term. To satisfy its burden, most jurisdictions require the non-assenting party to prove that incorporating an additional term into the parties’ agreement will result in surprise or hardship to the non-assenting party.”17

But “what is or is not a material alteration is dependent upon a number of factors and variables, including the value of the transaction, the quantity involved in the transaction, the relationship of the parties to each other, the custom and usage of trade, and the course of dealing and course of performance between the parties. Only by considering all of the above factors can a court make a determination whether a term is truly a material alteration.”18

The official comments to §?2-207 provide examples of material and immaterial alterations, but courts do not always feel obliged to follow their lead. Courts often opt for a fact-based analysis of each term. A survey of the cases decided over the course of a decade found that most cases hold that arbitration provisions do not materially alter the agreement; cases are split as to whether a disclaimer-of-warranty clause constitutes a material alteration; forum selection clauses usually constitute material alterations; cases are split over whether a limited remedy or a disclaimer of consequential damages constitute a material alteration; interest clauses do not constitute a material alteration; and attorney’s fees provisions rarely constitute a material alteration.19

Offerees Can Still Make Counteroffers under § 2-207, but the Common Law Last Shot Rule No Longer Applies

Despite the above, offerees can still make counteroffers under § 2-207. A contract is not formed via the exchange of forms if the offeree responds to the offer by making a counteroffer using the magic words of § 2-207(1)—the words after the comma. This portion of the paragraph recognizes that offerees can make counteroffers when “acceptance is expressly made conditional on assent to the additional or different terms.”

§ 2-207(1) states:

A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

U.C.C. § 2-207(1) (emphasis added).

When an offeree (in the typical scenario, the seller) parrots this safe harbor language of § 2-207(1) (after the comma) in its acknowledgement form or other document sent in response to the offer, the response is deemed to be a counteroffer that both rejects the offer and creates a new power of acceptance in the original offeror (typically, the buyer). In that case, no contract is formed via the exchange of forms.20

Recall that in this very scenario at common law, where the parties proceeded to perform even though their exchange of forms did not result in a contract, the last shot principle dictated that the terms of the contract were those of whichever party sent the last form (usually the seller). But to allow that result under the UCC would embrace the very thing § 2-207 was designed to avoid.

In recognition of this, courts hold that the acceptance of the goods in response to a UCC §?2-207 counteroffer does not constitute an acceptance of the offeree’s terms. The offeror is only bound to those terms if it expressly assents to them,21 which is most unlikely. So what are the terms of the contract if the parties proceed to perform anyway, as they typically do?

If the Parties Perform, There is a Contract by Conduct

If the parties fail to form a contract via the exchange of forms (as occurs when the offeree makes a counteroffer under § 2-207 (1)), and if the parties nevertheless perform—the seller ships and the buyer accepts the goods—the parties have a contract by conduct under § 2-207 (3).

(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

U.C.C. § 2-207(3) (emphasis added).

What are the Terms of this Contract by Conduct?

To ascertain the terms of a §?2-207(3) contract by conduct, the UCC instructs us to look to the forms the parties exchanged—the same forms that otherwise have no legally operative effect:

(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

U.C.C. § 2-207(3) (emphasis added).

The terms of the forms exchanged that match are, of course, the dickered terms (e.g., subject matter, quantity, price, and time of delivery). Non-matching terms are excised. These typically include disclaimer of implied warranties, limitations and substitutions of the default remedies provided by law, choice of law, choice of forum, and mandatory arbitration clauses.

The remaining gaps are supplemented by implied or default terms under the UCC. Thus, implied warranties, the entire panoply of remedies allowed by Article 2, and adjudication of disputes in a court of law—terms either expressly stated or impliedly assumed by Article 2—are inserted in the gaps left after non-matching boilerplate terms are excised.22 These default terms largely favor buyers.

Confirmations

If you aren’t sufficiently confused by now, note that § 2-207 treats written confirmations of oral or informal contracts as acceptances (more accurately, § 2-207(1) pretends that a confirmation constitutes an acceptance) even though the confirmation contains non-dickered terms different from or additional to the terms of the prior oral contract.23

The popular phrase “battle of the forms” is misleading. Section 2-207 applies to transactions involving a single confirmation, as well as where both parties send conflicting confirmations.24

Section 2-207 Has Not Been Applied to Common Law Cases

Unlike much of the UCC, the principles established by § 2-207 have not found their way into the common law. While the comments to the Restatement (Second) of Contracts mentions § 2-207, the Restatement continues to embrace the common law’s mirror image rule—with all its flaws—for contracts not involving the sale of goods. See Restatement (Second) Contract § 59 (“A reply to an offer which purports to accept it but is conditional on the offeror’s assent to terms additional to or different from those offered is not an acceptance but is a counter-offer.”) Given the pathologies of § 2-207, that may be for the best.


Timothy Murray, a partner in the Pittsburgh, PA law firm Murray, Hogue & Lannis, is co-author of the Corbin on Contracts Desk Edition (2017) and writes the biannual supplements to Corbin on Contracts.


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Related Content

For more information on the daunting challenges in contract law when the parties exchange unsigned forms, see

> UNDERSTANDING THE BATTLE OF THE FORMS

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RESEARCH PATH: Commercial Transactions > General Commercial and Contract Boilerplate > Contract Boilerplate and Clauses > Practice Notes > General Contract Drafting and Boilerplate

1. Reaction Molding Techs v. General Elec. Co., 585 F. Supp. 1097, 1104 (E. D. Pa. 1984). 2. D. Keating, Exploring the Battle of the Forms in Action, 98 Mich. L. Rev. 2678, 2679 (2000). 3. Prof. Grant Gilmore, quoted in J. Murray, The Chaos of the “Battle of the Forms”: Solutions, 39 Vand. L. Rev. 1307, 1309 (1986). 4. See W. David Slawson, Binding Promises at 198, n. 44 (1996). 5. United States v. Marietta Mfg. Co., 339 F. Supp. 18 (S.D. W. Va. 1972). 6. The dickered terms concept is central to understanding the battle of the forms. Llewelyn wrote:

Instead of thinking about “assent” to boiler-plate clauses, we can recognize that so far as concerns the specific, there is no assent at all. What has in fact been assented to, specifically, are the few dickered terms, and the broad type of the transaction, and but one thing more. That one thing more is a blanket assent (not a specific assent) to any not unreasonable or indecent terms the seller may have on his form, which do not alter or eviscerate the reasonable meaning of the dickered terms. The fine print which has not been read has no business to [undercut] the reasonable meaning of those dickered terms which constitute the dominant and only real expression of agreement.

K. Llewellyn, The Common Law Tradition: Deciding Appeals 370 (1960). Prof. Llewellyn wrote that “any contract with boiler-plate results in two . . . contracts: the dickered deal, and the collateral one of supplementary boiler-plate.” K. Llewellyn, The Common Law Tradition: Deciding Appeals 371 (1960). One court explained:

Usually, the parties “concentrate[] exclusively on the ‘dickered’ terms of the deal, i.e., those terms which they consciously adverted, such as the description of the goods, the quantity, the price and other terms which the decent merchant consciously would consider.”

Hunger U.S. Special Hydraulics Cylinders Corp. v. Hardie-Tynes Mfg. Co., 41 U.C.C. Rep. Serv. 2d (Callaghan) 165, 2000 Colo. J. C.A.R. 645 (10th Cir. 2000). See also, Alliance Wall Corp. v. Ampat Midwest Corp., 17 Ohio App. 3d 59, 477 N.E.2d 1206, 17 Ohio B. Rep. 114, 41 U.C.C. Rep. Serv. (Callaghan) 377 (Ohio Ct. App., 1984). 7. One court explained:

Prior to adoption of the Uniform Commercial Code (UCC), the common law “mirror image rule” held that an acceptance that did not precisely parrot the terms set out in the offer was never an acceptance but a mere counteroffer. . . . This rigid requirement led to an unfortunate practice whereby commercial dealings too often degenerated into a “battle of the forms” in which the merchant sending the last written communication before performance would reap the spoils of the battle by having the “last shot” at inserting favorable boilerplate terms.

Superior Boiler Works v. R.J. Sanders, Inc, 711 A.2d 628, 633, 36 U.C.C. Rep. Serv. 2d (Callaghan) 1031 (R.I. 1998). See also, VLM Food Trading Int’l, Inc. v. Ill. Trading Co., 811 F.3d 247 (7th Cir. 2016) (common law resolved the battle of the forms by applying the last shot rule). 8. Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1580, 39 U.C.C. Rep. Serv. (Callaghan) 1203 (10th Cir. 1984). 9. Richardson v. Union Carbide Indus. Gases, Inc., 790 A.2d 962, 968, 347 N.J. Super. 524, 534, 47 U.C.C. Rep. Serv. 2d (Callaghan) 119 (App. Div. 2002). 10. See, e.g., Transwestern Pipeline Co. v. Monsanto Co., 46 Cal. App. 4th 502, 53 Cal. Rptr. 2d 887, 96 Cal. Daily Op. Service 4354, 96 Daily Journal DAR 7002, 29 U.C.C. Rep. Serv. 2d (Callaghan) 1178 (Cal. App. 2d Dist. 1996). 11. “. . . generally courts have found that no contract is formed pursuant to the exchange of forms if the dickered terms of the offer and purported acceptance do not match in ways that matter to the parties.” T. Davis, U.C.C. Section 2-207: When Does An Additional Terms Materially A Contract?, 65 Cath. U.L. Rev. 489, 498 (2016). Professor John Murray explained: “It would not be reasonable to assume a ‘definite expression of acceptance’ if the variant term in the response to the offer is a ‘dickered’ terms such as a different price or product or quantity or another term which differed from a term in the offer that should have been reasonably understood as important to the offeror.” J. Murray, Murray on Contracts § 51 (2011). 12. Corus Am., Inc. v. Int’l Safety Access Corp., 2009 U.S. Dist. LEXIS 118838, at *14 (N.D. Ill. Dec. 22, 2009). 13. General Steel Corp. v. Collins, 196 S.W.3d 18, 60 U.C.C. Rep. Serv. 2d (Callaghan) 1 (Ky. Ct. App. 2006); H. Hamoudi, The American Commercial Religion, 10 DePaul Bus. & Comm. L.J. 107 (2012). 14. Examples of cases that have applied this rule: Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 39 U.C.C. Rep. Serv. (Callaghan) 1203 (10th Cir. 1984); Memphis-Shelby County Airport Auth. v. Ill. Valley Paving Co., 2006 U.S. Dist. LEXIS 79970 (W.D. Tenn. Nov. 1, 2006); Northrop Corp. v. Litronic Indus., 29 F.3d 1173, 24 U.C.C. Rep. Serv. 2d (Callaghan) 407 (7th Cir. 1994). 15. As used in 2-207, the term “merchant” “has a broad meaning referring to virtually anyone in business.” J. Murray, Murray on Contracts § 51 (2011). See § 2-104(1) and Comment 2 to that section. 16. J. Murray, Murray on Contracts § 51 (5th ed. 2011). 17. T. Davis, U.C.C. SECTION 2-207: WHEN DOES AN ADDITIONAL TERM MATERIALLY ALTER A CONTRACT?, 65 Cath. U.L. Rev. 489, 503 (2016). 18. C. Stephens, Escape from the Battle of the Forms: Keep it Simple, Stupid, 11 Lewis & Clark L. Rev. 233, 248 (2007). 19. T. Davis, U.C.C. SECTION 2-207: WHEN DOES AN ADDITIONAL TERM MATERIALLY ALTER A CONTRACT?, 65 Cath. U.L. Rev. 489 (2016). 20. Mark Andy, Inc. v. Heat Techs., 2015 U.S. Dist. LEXIS 44008 (E.D. Mo. Apr. 3, 2015) (“Here, Mark Andy’s Purchase Order [in response to Heat Technologies’ offer] tracks the statutory language and states that ‘acceptance of this Order is expressly made conditional on assent to the terms, provisions and conditions of this Order . . . ’ Accordingly, it was not a valid acceptance of Heat Technologies’ offer.” Rather, it was a counteroffer, but because it expressly conditioned its acceptance on Heat Technologies’ assent to the proposed terms in the Purchase Order, a contract on Mark Andy’s terms resulted only if Heat Technologies assented. The court explained: “Mere performance does not constitute acceptance of all the terms in the counter-offer.”) 21. Id.; C. Itoh & Co. v. Jordan Int'l Co., 552 F.2d 1228, 21 U.C.C. Rep. Serv. (Callaghan) 353 (7th Cir. 1977); Man Ferrostaal Inc. v. Winner Steel Servs., 2007 U.S. Dist. LEXIS 89109 (W.D. Pa. Nov. 19, 2007). 22. See Sanmina-Sci Corp. v. Pace U.S., 2015 Cal. App. Unpub. LEXIS 4765 (Cal. App. 6th Dist. July 7, 2015) (2-207(3) limits the contract to the terms on which their writings expressly agree, along with gap-filler provisions from the Commercial Code). 23. One court explained:

Section 2.207 is addressed to two situations. The first is where an offer is made and a written acceptance is sent in return, but the acceptance purports to add additional terms to the contract. . . . The second situation to which section 2.207 applies is where an agreement has already been reached by the parties, either orally or through informal correspondence, and is later followed by a formal written confirmation containing both terms already agreed upon and additional terms not previously discussed. . . . This “written confirmation” refers to the writing necessary to make enforceable a contract that would otherwise be unenforceable under the U.C.C.’s statute-of-frauds provision.

Int’l Metal Sales, Inc. v. Global Steel Corp., 2010 Tex. App. LEXIS 2201, at *30 (Tex. App. Austin Mar. 24, 2010) (invoice sent after oral agreement is not a confirmation). 24. See Dorton v. Collins & Aikman Corp., 453 F.2d 1161 (6th Cir. 1972).