FALL 2002
Sales
Law 7451

Computer ID	Day	Start Time	End Time	Room Number
84987	M	6:00	8:45	406 UL

Professor Budnitz
mbudnitz@gsu.edu
404/651-2135

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DOES § 2-207 REQUIRE MORE THAN ONE FORM?

Some courts hold that § 2-207 applies only where there is more than one "form" involved. For example, the section applies where the buyer sends the seller an order form, and the seller responds by sending the buyer a confirmation that contains different or additional terms to those on the order form. Cases such as ProCD hold that § 2-207 does not apply to transactions that involve only one "form" or writing.

Other courts hold that § 2-207 applies even where there is only one writing.

The transaction

Consumer makes an oral offer to buy.
The seller accepts orally or by "informal correspondence." (This is the term used in Comment 1, § 2-207.)
Consequently, there is offer and acceptance; a contract has been formed, although it is the result of an oral agreement.

The seller then sends the buyer a "form," a written agreement in the box containing the goods. An example is a shrinkwrap license in a box of software.

Therefore, we have an oral agreement followed by a written contract sent by one party.

Analysis employed by some courts

§ 2-207, Comment 1, specifically refers to the section applying where agreement is reached orally or by informal correspondence and one party follows up by sending a writing that includes terms. That is the only writing, the one and only form, and the Comment says § 2-207 applies. Because an agreement has already been formed, the oral agreement, the terms in the writing are "additional" terms and are subject to § 2-207(2).

Since this is a consumer transaction, the terms in the writing are merely a proposal.

See Klocek v. Gateway, Inc., 104 F. Supp.2d 1332 (D. Kan. 2000).