/DEF-uh-nit and SEE-zuh-nuh-bul ek-SPRESH-un uv ak-SEP-tuhns/·phrase
Also known as:definite and seasonable acceptance · seasonable acceptance · UCC 2-206 acceptance
Written by attorneys — see sources below.
A response to an offer for the sale of goods that clearly assents to the offer's essential terms and is dispatched within a reasonable time. The response forms a contract even when it contains additional or different terms unless the response expressly conditions acceptance on the offeror's assent to those terms.
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How its tested
Common Examples
2
Purchase Order Acknowledgment Adds Payment Term
Dawson Steel emailed Duffy Construction a purchase order for steel beams at a fixed price with delivery in thirty days. Duffy Construction faxed back the same day a signed writing that expressly agreed to supply the beams at the stated price and quantity. The fax added a requirement of immediate payment on delivery. Duffy Construction's response operated as a definite and seasonable expression of acceptance that formed a contract on the purchase order terms.
Confirmation Adds Warranty Limitation
Dillon Energy sent Dover Bank a quote for server arrays at a stated price with standard warranty terms. Dover Bank mailed back a signed purchase order the next day that accepted the quoted hardware, price, and delivery schedule. The purchase order added a limitation on consequential damages. Dover Bank's purchase order constituted a definite and seasonable expression of acceptance that created a contract despite the added term.
In 1987 Northrop Corporation, a large defense contractor, sent requests for offers to several manufacturers including Litronic Industries to supply customized printed wire boards designated as 1714 Boards.
The request stated that any resulting purchase order would set terms overriding inconsistent offer terms. Litronic responded with an offer to sell four boards for nineteen thousand dollars each with delivery within six weeks, a ninety-day warranty stated to be in lieu of any other warranties, and a provision that its offer terms would take precedence over buyer terms.
Northrop purchasing officer Lynch accepted the offer by telephone up to his twenty-four thousand nine hundred ninety-nine dollar authority limit and stated that a formal purchase order would follow. Litronic began production immediately after the call.
Lynch later sent a turn-on letter authorizing production of all four boards. A purchase order was mailed up to four months after the telephone conversation. The purchase order contained an unlimited warranty and required written acknowledgment from the seller, which Litronic never provided and Northrop never pursued.
Litronic delivered the first three boards in July 1988 more than a year after the telephone acceptance. Northrop tested the boards over the following five or six months and returned them in December and January claiming defects, but Litronic refused the returns on the ground that its ninety-day warranty had expired.
Northrop filed suit in federal district court seeking recovery of payments made for the 1714 boards and for a separate unrelated set of boards also claimed to be defective. The magistrate judge awarded Northrop fifty-eight thousand dollars for the three delivered 1714 boards but denied recovery on the other boards on the ground that Northrop had failed to return them. Both parties appealed the magistrate judge's decision to the United States Court of Appeals for the Seventh Circuit.
Does adding new terms in a response always prevent contract formation under the UCC?
No. A definite and seasonable expression of acceptance forms a contract even though it states additional or different terms unless the response expressly conditions acceptance on assent to those terms. The added terms are then treated as proposals rather than barriers to formation.
Supporting sources
What language makes an acceptance expressly conditional on assent to additional terms?
The response must use clear conditioning language such as 'subject only to' or 'conditioned upon' agreement to the new terms. Mere addition of terms in fine print or prominent clauses without such express conditioning language does not prevent the response from operating as an acceptance.
Supporting sources
How does the rule differ from the common law mirror image rule?
The common law mirror image rule treated any variance as a counteroffer that rejected the original offer. The UCC rule relaxes that approach by allowing a definite and seasonable expression of acceptance to form a contract despite additional or different terms unless expressly conditioned.
Supporting sources
939 F.2d 91 (3d Cir. 1991)
…517 Pa. 609, 536 A.2d 1333 (1987). : Section 2-207 provides: Additional Terms in Acceptance or Confirmation. (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless…