Also known as: expressly makes conditional · expressly making conditional · express condition · expressly conditional
Written by attorneys — see sources below.
A response to an offer that states additional or different terms operates as an acceptance unless the response is expressly made conditional on the offeror's assent to those terms. The condition must be stated clearly in the acceptance itself rather than inferred from surrounding circumstances or fine print.
Buyco sent Sellco a purchase order for widgets at four dollars per unit with delivery by June 1. Sellco replied with an order acknowledgment stating acceptance and listing dozens of additional terms on the back. Because the acknowledgment contained no language making acceptance expressly conditional on assent to the new terms, a contract formed under the UCC even though the forms differed.
A testator devised trust principal to the surviving issue of a life tenant. The will did not specify whether survival was required at the testator's death or at the later distribution date. The Restatement rule addresses construction of an express condition of survival that is ambiguous as to timing.
A buyer executed a promissory note promising to pay the seller ten thousand dollars on a stated date. The note contained an express condition that payment was due only if the buyer first received proceeds from a separate asset sale. The UCC treats such language as creating an express condition to payment.
A landlord agreed to let rooms overlooking a coronation route for a high daily rate. The written agreement contained no clause stating that the rooms were let only if the procession occurred. Because the condition was not expressly stated, the case turned on implied-condition principles rather than the UCC rule.
The plaintiff, Paul Krell, sued the defendant, C. S. Henry, for fifty pounds as the balance of seventy-five pounds agreed for the hire of a flat at 56A Pall Mall for the days of June 26 and 27. The parties understood that the rooms were to be used to view the coronation processions, and a deposit of twenty-five pounds was paid. Subsequently, the defendant saw an announcement that windows to view the coronation processions were to be let. He spoke to the housekeeper and agreed to take the suite for the two days. On June 20 the defendant sent a letter submitting a cheque for twenty-five pounds as a deposit and asking confirmation that he should have the entire use of the rooms during the days of June 26 and 27, with the balance of fifty pounds to be paid on June 24. The plaintiff's solicitor replied confirming the agreement. When the coronation processions did not take place on June 26 and 27, the defendant declined to pay the balance of fifty pounds and counterclaimed for the return of his twenty-five pounds deposit on the ground of total failure of consideration. Darling J. held that there was an implied condition that the procession should take place and gave judgment for the defendant. The plaintiff appealed.
View caseA state statute extended the redemption period for mortgagors during an economic emergency. The statute did not contain language making enforcement of existing mortgage contracts expressly conditional on the emergency continuing. The Contracts Clause analysis therefore did not turn on an express condition in the contracts themselves.
The Blaisdells executed a mortgage on their property in Minneapolis to the Home Building & Loan Association on August 1, 1928. The mortgage contained a valid power of sale by advertisement. After default, the mortgage was foreclosed and the property sold to the Association on May 2, 1932, for $3700.98. The period of redemption under the law then in effect was set to expire on May 2, 1933. On April 18, 1933, Minnesota enacted Chapter 339 of the Laws of 1933, known as the Mortgage Moratorium Law. The statute authorized district courts to extend the period of redemption from foreclosure sales for such additional time as the court deemed just and equitable, not beyond May 1, 1935, upon condition that the mortgagor pay a reasonable part of the income or rental value toward taxes, insurance, interest, and principal. The Blaisdells applied to the District Court of Hennepin County for an extension of the redemption period. The district court found that the reasonable rental value of the property was $40 per month and the present market value was $6000. It extended the redemption period to May 1, 1935, requiring the Blaisdells to pay $40 per month to the Association. The Supreme Court of Minnesota affirmed the order. The Home Building & Loan Association appealed to the United States Supreme Court, which reviewed the judgment sustaining the statute as applied to the preexisting mortgage.
View caseCourts require clear and explicit language in the acceptance itself declaring that it is conditional on assent to the additional or different terms. Vague references or fine print on the back of a form are insufficient.
Supporting sources
The response operates as a counteroffer rather than an acceptance. No contract forms on the terms of the offer until the original offeror assents to the new terms.
Supporting sources
When an acceptance is expressly made conditional, subsection (1) prevents contract formation by the writings alone. The parties' subsequent conduct recognizing a contract then creates an agreement under subsection (3) consisting only of the terms on which the writings agree plus gap fillers.
Supporting sources
…but also to cases where the event which renders the contract incapable of performance is the cessation or non-existence of an express condition or state of things going to the root of the contract and essential to its performance. The condition or state of things need not be expressly specified in the contract if it clearly appears…