Also known as: written confirmations · confirmation in writing
Written by attorneys · grounded in primary & secondary sources — see 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.
Select any source to read its text and confirm it supports the definition.
Yes. 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.
Supporting sources
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.
Supporting sources
…has been the repeated sending of a particular form by TSL. While one court has concluded that terms repeated in a number of written confirmations eventually become part of the contract even though neither party ever takes any action with respect to the issue addressed by those terms, most courts have rejected such reasoning. For two…