Also known as:supplementary term · supplemental terms · supplemental term · supplemental provisions
Written by attorneys · grounded in primary & secondary sources — see below
Gap-filler provisions supplied by the Uniform Commercial Code that complete a contract formed by the parties' conduct when their writings do not agree on all terms. These provisions include implied warranties of merchantability and fitness, damages rules such as seller liability for consequential damages, and other default rules like those governing delivery and risk of loss. Disputed terms appearing in only one writing are excluded and cannot be restored as supplementary terms.
Sources & Authorities
How it applies
Common Examples
2
Conflicting Forms on Damages Waiver
Sapphire Holdings emailed a bid to supply steel beams to Solstice Ventures at a fixed price and delivery schedule. Solstice responded with a purchase order that added a broad waiver of consequential damages. Both parties proceeded with fabrication, delivery, and acceptance of the beams despite the mismatch. The contract therefore included only the matching terms on price and quantity plus UCC gap-filler provisions that permit recovery of foreseeable consequential damages.
Arbitration Clause in Battle of Forms
C. Itoh sent a purchase order to Jordan International that omitted any arbitration provision. Jordan replied with its own form containing an arbitration clause. The parties performed the sale of goods without resolving the difference. Because the writings did not agree on arbitration, the clause was excluded and the contract was completed only by the agreed terms together with UCC supplementary provisions on remedies and warranties.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Casebooks
C. Itoh & Co. (America) Inc. v. Jordan Int’l Co.552 F.2d 1228 (7th Cir. 1977)
Common questions
Frequently Asked
3
What provisions count as supplementary terms under UCC § 2-207(3)?+
Supplementary terms include the Code's implied warranties of merchantability and fitness, its damages provisions such as seller liability for consequential damages, and standard gap-filler rules on delivery and risk of loss. They do not include any additional or different term that appears in only one party's writing.
Can an arbitration clause become a supplementary term when the writings conflict?+
No. Arbitration is not a supplementary term under UCC § 2-207(3) because it is an additional term that appears in only one writing and therefore cannot be restored through the gap-filler mechanism.
How do supplementary terms interact with a waiver of consequential damages that appears in only one form?+
A waiver appearing in only one writing drops out under the knock-out rule. The contract is then completed by the agreed terms plus the UCC's gap-filler provisions that permit recovery of foreseeable consequential damages.
939 F.2d 91 (3d Cir. 1991)Contracts
…case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of the Act. [^maj-12]: Two other issues were raised by Step-Saver. First, Step-Saver argued that the box-top disclaimer is either unconscionable or…
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