Sales and Leases - A Problem-based Approach, 2016a

Terms. Accord Brown Machine, 770 S.W.2d at 421 (express assent cannot be presumed by
silence or mere failure to object). Thus, because Gateway has not provided evidence sufficient to
support a finding under Kansas or Missouri law that plaintiff agreed to the arbitration provision
contained in Gateway's Standard Terms, the Court overrules Gateway's motion to dismiss....
4.4.4. Different Terms. Now let’s discuss what happens to “different” terms contained in
offeree’s acceptance if, under § 2-207(1), you have concluded that there is in fact an
operative acceptance. Section 2-207(2), on its face, applies only to “additional” terms.
What happens if the terms contained in the acceptance are “different” rather than
additional?
Daitom, Inc. v. Pennwalt Corp.
741 F.2d 1569 (10th Cir. 1984)
[Daitom invited bids from manufacturers of commercial vacuum dryers to supply it with
machinery to be incorporated into a chemical manufacturing plant being built by Daitom.
Pennwalt submitted a proposal specifying the equipment to be sold, the price, and delivery and
payment terms. Several pages of pre-printed terms and conditions were attached and incorporated
into the offer, including a clause providing for a one-year statute of limitations and a clause
providing certain express warranties and disclaiming all other warranties. Daitom accepted the
offer by issuing its own “purchase order” containing 17 pages of fine print terms and conditions.
When the machinery failed to work properly, Daitom brought a proceeding against Pennwalt
alleging, among other things, breach of implied warranties that had been disclaimed by Pennwalt
in its offer. The District Court dismissed Daitom’s breach of warranty claims, ruling that the
claims were barred by the one-year statute of limitations specified in Pennwalt’s offer.]
William E. Doyle, Circuit Judge delivered the opinion of the 10 th Circuit Court of Appeals:
….
The trial court concluded that the parties' exchanged writings formed a contract. Thus,
there was not a formal single document. Pennwalt's September 7, 1976 proposal constituted the
offer and Daitom's October 5, 1976 purchase order constituted the acceptance....
Having found an offer and an acceptance which was not made expressly conditional on
assent to additional or different terms, we must now decide the effect of those additional or
different terms on the resulting contract and what terms became part of it. The district court
simply resolved this dispute by focusing solely on the period of limitations specified in
Pennwalt's offer of September 7, 1976. Thus, the court held that while the offer explicitly
specified a one-year period of limitations in accordance with § 2-725(1) allowing such a
reduction, Daitom's acceptance of October 5, 1976 was silent as to the limitations period.
Consequently, the court held that § 2-207(2) was inapplicable and the one-year limitations period
controlled, effectively barring Daitom's action for breach of warranties.
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