402.207 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 made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(a) The offer expressly limits acceptance to the terms of the offer;
(b) They materially alter it; or
(c) Notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of chs. 401 to 411.
History: 1979 c. 89; 1991 a. 148, 304, 315.
A seller's “acknowledgment of order" that purports to deny liability for damages for defects becomes part of the contract only if it is assented to by the buyer. Air Products & Chemicals, Inc. v. Fairbanks, 58 Wis. 2d 193, 206 N.W.2d 414 (1973).
When an offer to purchase contained the term “FOB, our truck, your plant, loaded," the offeree's response stated “as is, where is," and the parties had no prior oral agreement, there was no valid contract and the court could not reach the issue of whether additional or different terms in response to an offer destroy an agreement between parties. Koehring Co. v. Glowacki, 77 Wis. 2d 497, 253 N.W.2d 64 (1977).
By signing an order form that provided that the buyer of a machine would indemnify and hold the seller harmless, the buyer expressly agreed to the provisions, whether or not there was a previously existing contract and whether or not the buyer read the order form before signing. Deminsky v. Arlington Plastics, Inc. 2001 WI App 287, 249 Wis. 2d 441, 638 N.W.2d 331, 01-0242.
Affirmed on other grounds. 2003 WI 15, 259 Wis. 2d 587, 657 N.W.2d 411, 01-0242.
An invoice is a written confirmation of a request for work by one party, the performance of work by the second, and the cost of the work agreed upon. While interest may not have been discussed originally, adding it to the bottom of the invoice constitutes the addition of a term not previously discussed between the parties, making the interest an additional part of the agreement unless one of the exceptions in sub. (2) applies. This section eliminates the traditional “meeting of the minds" requirement. Mid-State Contracting, Inc. v. Superior Floor Company, Inc. 2002 WI App 257, 258 Wis. 2d 139, 655 N.W.2d 142, 02-0761.
The question under sub. (2) (c) was not whether the defendant acquiesced to interest added to the bottom of invoices without inclusion in a contract, but whether the defendant objected to stop it. Mid-State Contracting, Inc. v. Superior Floor Company, Inc. 2002 WI App 257, 258 Wis. 2d 139, 655 N.W.2d 142, 02-0761.
This section recognizes that, in practice, parties' forms may not be identical, a party might later add divergent terms, and the parties may not always read each other's forms. This section allows for enforcement of the parties' agreement, including the added terms. An invoice falls within the ambit of this section. It is a written confirmation of a request for work by one party, the performance of work by the second, and the cost of the work agreed upon. If purchase orders and order confirmations were immovable bookends to a contract, ensuing transactions between the parties would be composed of a cumbersome, inefficient series of mini-contracts. This is what this section seeks to avoid. Converting/Biophile Laboratories, Inc. v. Ludlow Composites Corporation, 2006 WI App 187, 296 Wis. 2d 273, 722 N.W. 2d 633, 05-1628.
What constitutes “supplementary terms" under sub. (3) is not limited to provisions under ch. 402, but includes any terms arising under the U.C.C. and necessarily encompasses those sections relating to course of performance (s. 402.208), course of dealing, and usage of trade (s. 401.205). Dresser Industries v. Grandall Co. 965 F.2d 1442 (1992).
When a contract specified FAS terms, the buyer's confirmation form containing inconsistent terms did not relieve the buyer of liability for goods properly delivered FAS. Melrose International Trading Co. v. Patrick Cudahy Inc. 482 F. Supp. 1369 (1980).
The UCC Battle of the Forms: Answers to Common Questions. Richardson. Wis. Law. March 1996.