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CHAPTER 6

Mismatching Standard Terms: The “Battle of the Forms” Under UCC §2.207

§6.1 THE SCOPE AND PURPOSE OF UCC §2.207

§6.1.1 The Basic Purpose and Drafting Inadequacies of §2.207

Like all provisions of Article 2, §2.207 applies only where the agreement qualifies as a sale of goods.1 When it was originally drafted in the mid-twentieth century, §2.207 was a revolutionary provision. It was aimed at reforming the law relating to the sale of goods by eliminating and replacing certain common law offer and acceptance rules (described in section 6.2), which the drafters considered formalistic and inconsistent with commercial practice. Although §2.207 has been partially successful in its goal of bringing the rules of offer and acceptance more into accord with commercial practice, the section is not very well conceived and is poorly drafted. As a result, it has created interpretational difficulties and replaced the formalism of the common law rules with a new set of formalistic problems. In dealing with §2.207 over a period of about 60 years, courts have developed a means of working with it, but it has always been messy, convoluted, and, for the beginner, difficult to penetrate. The revision of Article 2 proposed in 2003 attempted to cure these longstanding problems by completely redrafting §2.207 and simplifying it. However, because the attempt to revise Article 2 in 2003 failed,2 we are stuck with the awkward language of the original version of §2.207, as judicially interpreted.

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