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This video will discuss the Battle of the forms under the common law and UCC section 2 207 it will also cover some electronic contracting issues including rolling contracts first let's discuss the typical transaction that we're going to be dealing with primarily we're talking about a buyer or other customer who submits a purchase order or a similar form to the seller that purchase order is going to contain terms that are favorable to the buyer like warranties, and it will be deemed of the offer second our seller instead of merely accepting everything in the purchase order will instead send its own form an acknowledgment or something like that it's going to purport to accept the offer they'll agree on material terms like price and quantity etc, but it will contain the sellers own terms since it's a standardized form those terms are going to be more favorable to the seller and include things like limitations on liability than the parties are going to perform they're not going to necessarily notice the different legalese on the two forms, and they will continue to perform the problem then occurs when a dispute arises, and we have a question whether there's a contract and if so what are its terms will the limitations on liability in the seller's form govern or will the buyers forms including warranties etc in the purchase order govern, and importantly it's going to depend for the most part on whether you're talking about the common law or the UCC under the common law when you have this kind of qualified acceptance a second form that purports to accept but has different forms we have two rules that come into play the first is called the mirror image rule and what the mirror image rule says is that anytime the acceptance is not the mirror image of the offer meaning it has anything that's different any different terms etc then it will not be deemed an acceptance at all under the common law it will be deemed a counteroffer the second rule that comes into play is the last shot rule under the typical transaction after that counteroffer the parties proceed to perform that performance will be deemed acceptance of the counteroffer by the buyer therefore the counteroffer in all of its terms will govern the last shot the last form that was sent is going to govern the parties' agreement so under the common law first you find the offer second you find the purported acceptance, and you have to ask yourself is that communication and acceptance or a counteroffer under the common law if the acceptance is not the mirror image then it is going to be a counteroffer third did the original offer or typically the buyer reject the terms in that counteroffer if so then we didn't have an acceptance but as I said what normally happens is the parties don't even read each other's contracts, and they don't realize that there are these different terms there, so they go ahead and perform and if that's the case then the original offer or typically the buyer will be deemed to have...
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