Also known as: additional term · supplementary terms
Written by attorneys · grounded in primary & secondary sources — see below
Provisions proposed in an acceptance or confirmation that supplement or vary the terms of an offer. Between merchants such provisions enter the contract unless the offer limits acceptance to its own terms, the additions materially alter the bargain, or objection is seasonably given. Consistent provisions may also supplement an integrated writing unless the writing was intended as a complete and exclusive statement of the agreement.
Aurora Biotech sent Apex Dynamics a purchase order for 500 units of specialized lab equipment at a fixed price. Apex replied with a written acceptance that added a clause requiring delivery within ten days. Both parties are merchants and the added term did not materially change the deal. The ten-day delivery clause therefore became part of their contract.
Alexis Archer signed a written lease with Argonaut Shipping for warehouse space that contained no mention of parking rights. During negotiations the parties orally agreed that Archer could use two designated parking spots at no extra charge. The court admitted evidence of the parking arrangement because the lease was not completely integrated. The additional term therefore supplemented the written lease.
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Amber Alonzo ordered custom circuit boards from Ashford Manufacturing. Alonzo's purchase order and Ashford's acknowledgment contained conflicting warranty clauses. Both parties performed by shipping and accepting the boards. Their conduct established a contract whose terms consisted of the points on which the writings agreed plus any supplementary UCC provisions.
Andrew Avery ordered a computer from a mail-order vendor. The box contained terms including an arbitration clause that arrived after payment. Avery used the computer without returning it. The arbitration clause became part of the contract under the vendor's standard practice of including additional terms with the product.
Austin Abbott signed an employment contract containing an arbitration clause that required employees but not the employer to arbitrate claims. The clause lacked mutuality and could not be saved by adding new terms. The court refused to reform the agreement by augmentation and held the clause unenforceable.
Alan Ackerman sold a ranch to Alice Atkins under a deed that granted an option to repurchase but was silent on assignability. The parties had separately discussed that the option would remain personal to Ackerman. Evidence of that consistent additional term was admissible because the deed was not completely integrated. The option therefore could not be assigned.
Between merchants the additional terms enter the contract unless the offer expressly limits acceptance to its own terms, the additions materially alter the bargain, or objection is given within a reasonable time. The terms are treated as proposals for addition rather than automatic rejections of the offer.
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Evidence of a consistent additional term is admissible to supplement an integrated agreement unless the court finds the writing was intended as a complete and exclusive statement of the parties' bargain. The rule bars only contradictory terms or terms that would have been included if agreed upon.
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Conduct recognizing the existence of a contract is sufficient to establish a contract even if the writings do not agree. The resulting contract consists of the terms on which the writings agree together with any supplementary terms supplied by the UCC.
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…was a "merchant" and they are not. Section 2-207(2) of the UCC, the infamous battle-of-the-forms section, states that "additional terms [following acceptance of an offer] are to be construed as proposals for addition to a contract. Between merchants such terms become part of the contract unless ...". Plaintiffs tell us that…