Vanderbilt Law Review

First Page



Whatever may be said of the lack of certainty, stability, and predictability in many areas of the law, chaos rarely is discovered. Unfortunately, we have now reached that point in matters involving attempts by innumerable buyers and sellers to make contracts through an exchange of printed forms. Because printed forms will continue to be the written evidence of the overwhelming majority of attempted contracts in America,' this chaos threatens the institution of contract in our society. There should be no doubt that"chaos" is an accurate characterization of the state of the law in the "battle of the forms" arena. Courts and commentators have disagreed on the proper application, interpretation, and construction of the statute governing contracts for the sales of goods, section 2-207 of the Uniform Commercial Code. Courts have been in-consistent and devoid of intellectual acuity in attempting to apply 2-207. Fair results in these cases often have been the product of sheer coincidence, and many litigants have not been fortunate. The challenge of judicial elaboration that Karl Llewellyn created in this section of Article 2 has not been approached.

Because there is no conventional wisdom concerning 2-207, no recognized scholarship can be relied on. In their well-known commercial law text, Professors White and Summers express unusually candid disagreement on the proper interpretation and construction of 2-207. Moreover, neither author is particularly pleased with his view and each would prefer that the statute be redrafted. The statute itself is not merely a "murky bit of prose."' It is riddled with angular phraseology and features a subsection which was tacked on belatedly without the aid of the statute's principal draftsman. In the view of one of commercial law's giants, that added subsection converted a troublesome statute into a "disaster." Resorting to the Official Comments accompanying 2-207 is something akin to a metaphysical experience until one realizes that the creators of the Comments were as confused as all others who have attempted to deal with the section since its enactment. Amendments to the Comments, designed to patch the section where it did not work,have succeeded only in exacerbating the confusion. The practicing bar always has been wary of 2-207's charms, and the academic community has retreated more than substantially from its initial high praise of the section. Demands for the abolition of 2-207 and a new start are mounting, and suggested substitutions in the literature are not difficult to discover.' Some had hoped that the Restatement (Second) of Contracts, which appeared long after the enactment of 2-207 throughout the country, would provide elaboration and guidance concerning the entire standardized agreement phenomenon, including the "battle of the forms." Instead, the Restatement is unfortunately counterproductive. Bringing order from the current chaos of 2-207 through the judicial process may not be possible. The statute may be fatally flawed. Before reform of any kind can be successful, understanding the purposes of 2-207 as a species of the purposes of Article 2 of the Uniform Commercial Code is essential.

This Article first will explore those purposes. In doing so, it will confront the highly controversial problems faced in interpreting and construing 2-207. The Article then will reexamine the section's drafting history, case law,and scholarship to provide workable analyses of the counter-offer riddle and the puzzle over different versus additional terms. Resolving these well-known problems leaves the final enigma, which has not been understood, much less confronted. Finally, the denouement is discovered, through understanding the normative assumptions of 2-207 as facets of the normative assumptions of the Article 2 prism, to promote fidelity to the underlying philosophy of Article 2 in in the particular context of the inevitable "battle of the forms."