If UCC applies Article 2 UCC 2-102 applies to transactions in goods.

2-105 a good is anything movable (excluding money) at the time of identification to the contract (including specially manufactured goods, unborn animals, and growing crops). 2-106 a sale is the passing of title from the seller to the buyer for a price. APPLICATION Battle of the forms Comment 1 of 2-207 there are two scenarios when 2-207 applies: when an agreement is reached orally or by informal correspondence followed by formal confirmation that includes terms not discussed OR where wire or letter intended for acceptance adds further minor suggestions or proposals. APPLICATION 2-207(1) There are three sections to 2-207. Before we can go to section 2 or 3 we have to start at section 1. Section 1 asks three questions: Is there a definite and seasonable acceptance? Terms additional to or different from offer? Was acceptance made conditional on assent to those terms? FOR AN ACCEPTANCE THERE MUST BE AN OFFER Formation of contract under UCC 2-204 contract for the sale of goods may be made in any way sufficient to show agreement. 2-206 unless language or circumstances of offer unambiguously indicate otherwise, acceptance may be made in any manner and by any medium reasonable in the circumstances. Order for prompt shipment shall be construed as inviting acceptance by prompt promise to ship or prompt shipment. In Maryland Supreme Corp. v Blake Co. the issue was whether the letter to sell concrete was a valid offer. The court there was dealing with a good, concrete, and was likewise in the UCC. Since offer is not defined in the UCC the court, using UCC 1-103 (unless defined by the UCC, provisions may be supplemented), looked to the common law; court holding yes because the letter was definite and certain leaving nothing open to negotiation. The letter showed a willingness to enter into a bargain; by listing a guaranteed price, quantity and quality of the product it justified that the other person understood his assent was invited and would conclude it. APPLICATION OF OFFER Here, using 1-103 to look to 24 Acceptance is not defined in UCC50 man. Assent to terms made by offeree invited by the offer. Under common law the mirror image rule applies, the acceptance must mirror the offer or it may be a counter-offer or rejection. Under UCC, however, that is abandoned; provided the acceptance does not diverge significantly from the dickered terms, boilerplate terms may diverge and a contract can still be formed, removing the unfair advantage the offeree had under the last shot rule. Dorton v Collins & Aikman Corp.; U.S. Industries, Inc v Semco Manufacturing. Definite addresses dickered terms, those which parties have negotiated and agreed upon: price, quantity, delivery, type of good. 1-204(3) An acceptance is seasonable when it is received within the time agreed on or if no time is agreed then a reasonable time. (2) reasonable time depends on the nature, purpose and circumstances. APPLICATION Additional terms are those that were not in the offer but added to the acceptance; different terms are those that were in the offer but changed in the acceptance. APPLICATION In Dorton the issue was whether the language used in the acceptance was enough to constitute a acceptance of additional or different terms by the offeror. The court held no because it is not enough for the acceptance to be conditional on additional or different terms, rather conditional on the offerors assent to those terms. Different from the mirror image rule, to be a counter-offer it must show that the offeree does not intend to be bound unless the offeror assents to the additional or different terms. APPLICATION distinguishable 2-207(2) Additional terms are proposals to the contract. Klocek v Gateway the issue whether between merchant and non-merchant did the additional terms after a 5-day waiting period would constitute assent to additional terms. The court held no, a signature would be sufficient; however, holding on to the terms for a certain number of days is not sufficient for assent to the additional terms. APPLICATION or Between merchants additional terms become part of the contract UNLESS offeror limits acceptance to his terms, material alters offer, offeror has already objected to additional terms. Comment 4 material alter results from surprise or hardship. 2104 Merchant is one who deals in goods of the kind or holds himself out to having knowledge of the good. 2-314 if seller is a merchant, warranty of merchantability is implied. APPLICATION DIFFERENT TERMS courts view different terms in three ways: majority or knock-out rule terms of the writing become binding with any gap fillers; minority is to treat different terms as additional; acceptance terms fall-out terms of offer govern. APPLICATION 2-207(3) Conduct by both parties, which recognizes existence of a contract, establishes a contract. The terms of the contract are those that the writings agree, along with any UCC gap fillers. APPLICATION This is in line with the objective theory of contracts, looking to the outward manifestations of words and conduct of both parties rather than subjective intent. Also, because the offeror is the king/queen of the offer it assures that the offer is controlled by the offeror and both parties, upon mutual assent, are bound by what was agreed upon. CONCLUSION