A Brief Working Guide to UCC § 2-207

1. Start with an acceptance or written confirmation having varying terms. Is it expressly made conditional on assent to the varying terms?
   
   
   • YES: If it is an acceptance it operates as a counteroffer,[1] which may in general be accepted via partial or complete performance.[2] Go to 3.
     
     If it is a written confirmation, it operates as an offer to modify a pre-existing contract.[3] Go to 2.
     
     
   • NO: Go to 2.
   
   
2. Additional terms[4] serve as proposals for an addition to the contract and between merchants become part of the contract unless:
   1. the offer expressly limits acceptance to its terms;
   2. they materially alter the contract; or
   3. notification of objection has already been given[5] or is given within a reasonable time after receipt of notice of the additional terms.
   
   
3. If the writings[6] of the parties do not establish a contract, the conduct of the parties may establish a contract consisting of the terms on which their writings agree and any supplementary terms[7] provided by other provisions of the Act.

[1]. An acceptance with varying terms operates as a counter-offer. Restatement (2nd) of Contracts § 59.

[2]. Restatement (2nd) §§ 30(2), 32, 62; UCC § 2-206.

[3]. See UCC § 2-209.

[4]. What about different--that is, contradictory--terms? See Northrop Corp. v. Litronic Industries, 29 F.3d 1173, 1175 (discussing three approaches). California courts treat different terms like additional ones. See Steiner v. Mobil Oil Corporation, 20 Cal. 3d 90, 101-02 (1977).

[5]. Even if only by use of conflicting forms. See UCC § 2-207, Comment 6.

[6]. But see Dorton v. Collins & Aikman Corp., 453 F.2d 1161, 1169 n. 6 (6th Cir. 1972) (approving trial court's comparison of oral offer and written acceptance).

[7] Compare C. Itoh & Co. (America) Inc. v. Jordan Int'l Co., 552 F.2d 1228, 1237 (7th Cir. 1977) (disallowing reintroduction of terms on which the parties' writings disagreed and limiting supplementary terms to gap-fillers like implied warranties) with Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1580 (10th Cir. 1984) (admitting any supplementary terms provided by other provisions of the UCC, including terms provided by reference to course of performance, course of dealing, and custom).

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