Also known as: written confirmations · confirmation in writing
Written by attorneys — see sources below.
A formal memorandum sent after parties reach an oral or informal agreement that records the agreed terms and may propose additional terms.
Warren Wu telephones Watershed Pharmaceuticals and agrees to buy a shipment of raw materials at a stated price. Watershed later mails a written confirmation that repeats the price and adds a delivery date. The confirmation creates a binding contract even though the delivery date was not mentioned on the call.
Roto-Lith orders emulsion from Bartlett by telephone. Bartlett mails an acknowledgment that accepts the order but adds a disclaimer of warranties. The acknowledgment operates as an acceptance and forms a contract despite the new disclaimer.
Roto-Lith, Ltd., a New York corporation engaged in manufacturing cellophane bags for packaging vegetables, purchased emulsion from F.P. Bartlett & Co., a Massachusetts corporation that makes emulsion for use as a cellophane adhesive, in May and October 1959. Subsequently bags produced with this emulsion failed to adhere, and this action was instituted in the district court for the District of Massachusetts. On October 23, 1959, Roto-Lith mailed a written order to Bartlett for a drum of “N-132-C” emulsion, stating the end use as wet pack spinach bags. Bartlett prepared an acknowledgment and an invoice on October 26 bearing a conspicuous legend that all goods sold without warranties, express or implied, and subject to the terms on reverse side, with terms excluding all warranties and limiting seller's liability to replacement. The goods were shipped on October 27, and the acknowledgment was received at least no later than the goods. Roto-Lith did not protest the terms in the acknowledgment, paid for the emulsion, and used it. At the conclusion of the evidence the district court directed a verdict for Bartlett. In May 1959 Roto-Lith ordered a quantity of “N-136-F” emulsion, which Bartlett knew was of necessity unfit for the disclosed wet bag purpose. However, Roto-Lith did not advance arguments distinguishing the May order from the October order during the trial. Bartlett asserted a counterclaim, but it requires no separate discussion. Roto-Lith appealed the directed verdict to the United States Court of Appeals for the First Circuit.
View caseYes. Under UCC § 2-207(1) a written confirmation sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those agreed upon, unless the confirmation expressly conditions acceptance on assent to the new terms.
Supporting sources
It records the terms already reached and may propose additional terms. The confirmation does not undo the prior oral agreement but instead supplies the formal writing that embodies it.
It fails only when the confirmation expressly states that acceptance is conditional on the offeror’s assent to the additional or different terms. Ambiguous language such as “subject to” does not satisfy this requirement.
…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 acceptance is expressly…