M Civ JI 140.05 Contract Action - UCC: Contract Terms - Written Acceptance or Confirmation with Different or Additional Terms

*(If you decide there is an enforceable contract,) you must *(then) decide what terms are included in the contract. The contract will include those terms in the offer to which the [ buyer / seller ] agreed.

It will include additional or different terms contained in the written [ acceptance / response ] if the [ buyer / seller ] through [ his / her / its ] words or actions indicated in any reasonable manner that [ he / she / it ] agreed to the additional or different terms.

It will also include additional terms that were not agreed to if:

(a) the [ seller / buyer ] did not notify the [ buyer / seller ] that [ he / she / it ] objected to the additional terms within a reasonable time after receiving the written [ acceptance / response ], and

(b) the seller and buyer are both merchants, that is, people who deal in [ specify types of goods ] or who, by their occupations, hold themselves out as having knowledge or skill about [ specify types of goods ] or transactions involving [ specify types of goods ], and

(c) the offer did not limit acceptance only to those terms contained in the offer, and

(d) the additional terms in the [ acceptance / response ] do not materially alter the terms contained in the offer.

Note on Use

*The words in parentheses should be used if applicable to the case.

Subparagraph b of this instruction defines merchant. See MCL 440.2104(1), (3).

This instruction does not apply to cases where, although no contract is formed via the exchange of forms, the parties by performance recognize the existence of a contract. MCL 440.2207(3); see also American Parts Inc v American Arbitration Association, 8 Mich App 156, 176; 154 NW2d 5 (1967).

Comment

MCL 440.2207.

Additional terms become part of the contract if a merchant fails to object to them, but different terms do not become part of the contract if there is a failure to object. American Parts Inc v American Arbitration Association; Challenge Machinery Co v Mattison Machine Works, 138 Mich App 15; 359 NW2d 232 (1984); S C Gray Inc v Ford Motor Co, 92 Mich App 789; 286 NW2d 34 (1979).

History

M Civ JI 140.05 was added January 1987.