Written by attorneys · grounded in primary & secondary sources — see below
Terms stated in an acceptance or confirmation that vary from those in the offer. Under the UCC a definite and seasonable expression of acceptance operates as an acceptance even though it states terms additional to or different from those offered unless acceptance is expressly made conditional on assent to the additional or different terms.
Drake Logistics sends Duarte Shipping a purchase order for steel coils at $800 per ton with payment due in 30 days. Duarte replies with an acknowledgment accepting the order but stating payment is due in 45 days. The acknowledgment forms a contract because it is a definite expression of acceptance sent within a reasonable time. The payment term is treated as a proposal for addition to the contract.
Pacific Gas hires Thomas Drayage to remove and replace a turbine cover under a written contract requiring the contractor to indemnify the owner for property damage. After the cover falls and damages equipment, the parties disagree whether the indemnity clause covers damage to the owner's own property. The court admits extrinsic evidence showing the parties attached different meanings to the clause before deciding whether the writing is ambiguous.
Select any source to read its text and confirm it supports the definition.
Yes. A definite and seasonable expression of acceptance operates as an acceptance even though it states terms additional to or different from those offered unless acceptance is expressly made conditional on assent to the additional or different terms.
Supporting sources
The additional or different terms are construed as proposals for addition to the contract. Between merchants they become part of the contract unless the offer expressly limits acceptance to its terms, they materially alter the contract, or notification of objection has already been given.
Supporting sources
Rational interpretation requires preliminary consideration of all credible extrinsic evidence offered to prove the intention of the parties. The fact that terms appear clear to a judge does not preclude the possibility that the parties chose language to express different terms.
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…be regarded as a proposal for an added term unless the acceptance is made conditional on the acceptance of the additional or different terms. Although UCC § 2-202 permits the parties to reduce an oral agreement to writing, and UCC § 2-209 permits the parties to modify an existing contract without additional consideration, a…