UCC 2-207 Flowchart: Battle of the Forms

UCC 2-207 Flowchart: Battle of the Forms

Download a .pdf version of the UCC 2-207 flowchart When it is not exactly clear what parties agreed upon but it is clear that the parties intended to agree, a court must determine what terms apply. If various forms have been sent back and forth between the parties common law only gives us two options to apply to the forms: Offer and Acceptance or Counteroffer. The Uniform Commercial Code (UCC) gives us a third option: acceptance with additional terms. This option can be found in the UCC 2-207. The goal of 2-207 is to determine which terms apply from the contract negotiation; however, the language of the section can be very confusing and hard to follow. This UCC 2-207 flowchart should be helpful in navigating this section of the UCC. Download a .pdf version of the UCC 2-207 flowchart   For an example of the Battle of the Forms in action see Brown Machine, Inc. v. Hercules, Inc....

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Yates v. Hendon, 541 US 1 (2004)

Facts: Yates, the sole shareholder and president of Raymond B. Yates, M.D., P.C., a professional corporation, set up and participated in an ERISA-protected profit sharing plan for the corporation. Personal creditors filed an involuntary bankruptcy petition under Chapter 7. Just three weeks before bankruptcy was filed against him, Yates paid $50,467 into the ERISA profit sharing plan. ERISA has an anti-alienation provision which protects the Plan’s assets from transfer or attachment. The Bankruptcy Trustee sought the $50,467 that Yates had paid into the profit-sharing plan to be allocated to Yates’ creditors. Procedural History: The Bankruptcy Court ruled in favor of the Trustee because it determined that Yates was “a self-employed owner of the professional corporation that sponsored the pension plan,” and therefore, Yates could not “participate as an employee under ERISA.” Issue: Whether Yates, the working owner of a business, can qualify as a “participant” in a pension plan covered by the Employee Retirement Income Security Act (ERISA). Holding: Yes, Yates can qualify as a participant in the ERISA plan as long as the plan covers one or more employees other than the business owner and his or her spouse. Reasoning: Although ERISA did not helpfully define “employee,” the Court did not look to common-law agency principles to determine whether Yates was an employee as it did in Clackamas Gastroenterology Associates v. Wells. Instead, the Court determined that “ERISA’s text contains multiple indications that Congress intended working owners to qualify as plan participants. Because these indications combine to provide “specific guidance,” there is no cause in this case to resort to common law.” Under ERISA, a working owner may have dual status; Yates can be an employee and an employer. In addition, ERISA was enacted against a backdrop of IRC provisions that permitted corporate owners to participate in tax-qualified plans....

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Natkin v. Winfrey, 111 F. Supp. 2d 1003 (N.D. Ill. 2000)

Facts: Natkin and Green, the plaintiffs, are professional “live event” photographers who had worked on the set of The Oprah Winfrey Show. Winfrey subsequently published a book which contained eleven photographs that were taken by the plaintiffs. Natkin and Green did not give their permission and instituted a copyright infringement action; they claim they were independent contractors. Winfrey claims that the photographs are not owned by the plaintiffs because they were employees of Harpo and the pictures were taken within the scope of their employment. Issue: Whether Natkin and Green were employees of Winfrey when the photographs, which are the basis for the copyright action, were taken. Holding: Natkin and Green were never Harpo employees. Harpo hired both photographers as independent contractors; therefore, Harpo must produce a written work made for hire agreement to successfully claim exclusive ownership of the copyrights to these photographs. Judgment: Natkin and Green were granted a partial summary judgment on the work made for hire issue. Reasoning: Harpo Productions choose to treat Natkin and Green as independent contractors and cannot change their position to reap a different benefit. Generally, a photographer is the author of his photographs. However, there are two relevant exceptions: (1) “work made for hire” and (2) “joint work.” Further Discussion on the Work Made for Hire Exception: Under the “work made for hire” exception, the works are “authored” by the hiring party. One of two elements must be met to constitute a work made for hire: (1) a work prepared by an employee within the scope of his employment; or (2) a work specially ordered or commissioned…if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 USC §101. Here, there was no written agreement so Winfrey argued the first element. The court applied the Reid factors (13 nonexhaustive factors from a Supreme Court decision regarding the work made for hire exception) to this argument and determined that Natikin and Green were not Harpo employees. Some of the relevant facts to this determination: Natkin and Green used their own camera equipment and lenses, brought additional equipment (i.e. lights, backdrops), and usually processed the film themselves. They had complete discretion over the technical aspects of the shoot. Harpo Productions paid Natkin and Green as independent contractors and did not provide them with any insurance or other compensation benefits....

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McCary v. Wade, 861 So. 2d 358 (Miss. Ct. App. 2003)

Facts: McCary and Fulwiley were riding home in a van provided by their employer. The van was struck head-on by a logging truck driven by Dexter Myrick after Myrick swerved to avoid colliding with another driver who pulled out in front of him. McCary and Fulwiley were severely injured and sued all parties involved as well as Chris Wade and his company Wade Land Management (WLM). Wade had contracted with Georgia Pacific for sale of the timber and hired Myrick to transport the timber. Issue: Whether Wade could be held vicariously liable for Myrick’s actions. Holding: Myrick was an independent contractor. Therefore, Wade and WLM were not liable under respondeat superior for Myrick’s negligence. Reasoning: The court examined the facts of the relationship between Myrick and WLM. For example, Myrick bought his own timber, cut it, and hauled it all himself. Myrick decided his own work hours and where he would work. Also, Myrick owned all of the equipment needed for his operation. The day of the accident, Myrick was en route to his home from Georgia Pacific. Furthermore, Wade “didn’t have to pay a cent” for Myrick’s cutting operation and only used ICs because he would have to pay for haulers’ trucks and operation costs. McCary and Fulwiley raised the issue that Myrick should be found as an employee under public policy because Myrick was bankrupt and without insurance coverage. However, the court held that the public policy factor only becomes an issue when an employer and employee have a relationship that would ordinarily be characterized as an employer/employee but have a contract which defines their relationship as that of independent contractors. Here, the evidence actually showed that Myrick was an independent...

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