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.
This is a great chart and very similar to what I had mapped out myself, but I’m still confused as to what happens if you have different terms, i.e.: not in addition to, but rather different than the original contract. As I understand it, in California, there is no distinction between “different” and “additional” terms, is this correct? Alternatively, do courts use a different analysis for when terms are different?
If you have different terms changing the existing contract provisions it would probably constitute a counter-offer. The court must determine which form creates the “offer” – so if the terms are different I would think they would start with “counter-offer.” The problem though is that the boilerplate provisions are not the same. I know they use 2-207 for the “different” boilerplate terms and replace conflicting terms with general gap filler provisions. But gap fillers would not work for non-general terms. As far as California not making a distinction between different and additional, if they adopted the UCC the analysis should be the same.