Also known as: expressly makes conditional · expressly making conditional · express condition · expressly conditional
Written by attorneys · grounded in primary & secondary sources — see 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.
Select any source to read its text and confirm it supports the definition.
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.
A 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.
Courts 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.
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…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…