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Video instructions and help with filling out and completing When Form 5495 Agreements

Instructions and Help about When Form 5495 Agreements

We will now address one of the thorny issues in contract law that we will consider this year the so-called Battle of the forms we've previously learned that to create a contract and offer ease acceptance must be the mirror image of the offer if the offeree and attempting to accept changes any non-trivial term of the offer he is not accepted instead he has made a counteroffer given these basic rules of contract formation problems arise when parties use pre-printed forms to contract forms containing their own terms and conditions often refer to as boilerplate the use of such forms is common among large commercial parties not surprisingly the standard terms that appear in pre-printed forms tend to favor the party sending the form in general commercial parties are interested in the major terms of a contract description price and quantity given how common the use of pre-printed forms has become in today's commercial world parties tend not to haggle over the standard terms and conditions in boilerplate therefore when such forms are used for contracting there are likely to be conflicts between the terms of the parties respective documents nonetheless in the vast majority of cases such conflicts are irrelevant because parties undertake and complete their contractual obligations without any dispute entirely oblivious to the fact that the documents they exchanged contain conflicting provisions each side performs its duties the work is completed payment is made and everyone is happy but when a dispute does occur the question arises as to which parties terms and conditions govern the dispute the common law principles of contracting lead to the so-called last shot rule given the mirror image rule every time a document with conflicting terms as exchanged during negotiations it will effectively be a counteroffer at some point one party begins performance given common law rules of acceptance by conduct beginning performance is interpreted as accepting the terms of the last counteroffer exchanged accordingly the terms of the last document exchanged will generally be deemed to govern disputes thus the so-called last shot rule the drafters of the Uniform Commercial Code considered this result to be unduly rigid and unfair especially in light of the fact that the contracting parties negotiate over a contracts essential terms they rarely haggle over and often do not even read the terms hidden boilerplate accordingly the drafters adopted section 2 - 207 in an attempt to mitigate the unfairness of the mirror image and the last shot rules let's begin with subpart 1 of that provision which reads this subpart allows an offer ease acceptance to create a valid contract despite the fact that the offer ease acceptance contains terms that are not the mirror image of the offer the first thing to notice is that this subpart applies to two different situations first it applies in instances where there has been a definite and seasonable expression of acceptance second it applies to instances involving a written confirmation the first Clause deals with cases in which the parties exchanged writings the second Clause deals with cases in which the parties have already entered into an oral agreement and one or both parties follow up with a document that purports to memorialize the terms of that agreement let's begin with the first clause involving a definite and seasonable expression of acceptance this UCC section makes no mention of an offer but it assumes that one has already been made whether there is an offer on the table is determined by the common law rules we've already considered assuming an offer has been made if the offeree manifests timely assent to the offer referred to as a definite and seasonable expression of acceptance a contract will be created even though that acceptance contains additional or different terms not found in the offer whether these additional or different terms become part of the contract is determined by section 2 207 subsection 2 which we will consider in the next module what is clear is that this section of the UCC abolish --is the mirror image rule at least in some cases there are three important instances in which a written response to an offer will not operate as an acceptance first if the response cannot be reasonably viewed as an expression of acceptance it will not result in a contract consider the following case the buyer sends the seller a purchase order for a hundred widgets at five dollars per widget the seller responds in writing that it will gladly sell the buyer 100 widgets at six dollars per widget the sellers response is not a definite and seasonable expression of acceptance because it has rejected an essential term of the buyers offer the proposed price rather it is a counteroffer the second situation in which a definite expression of acceptance will not operate as an acceptance is where does not seasonable in other words not timely consider the following the buyer writes to the seller offering to purchase the sellers a one industrial saw for $1000 and requires acceptance of the offer by Friday if the seller sends a written acceptance on the following Monday the acceptance is not seasonable and therefore ineffective to form a contract finally the third situation in which the offer ease definite and seasonable expression of acceptance will not operate as an acceptance of the offer is where the offeree explicitly conditions acceptance on the offer roars assent to the offer ease additional or different terms the drafters have termed this a conditional acceptance in effect a conditional acceptance is no acceptance at all but rather a counteroffer courts have made clear that the offer ease response to an offer will be treated as a conditional acceptance only if there is a clear and explicit language making it a conditional acceptance an example would be language in the sellers written acceptance such as the following the seller accepts the buyers order on the condition that the buyer agree to.

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