Demilitarizing the Battle of the Forms: A Peace Proposal

Monday, January 1st, 1990 at 12:00 am by Robert M. Rosh
Robert M. Rosh, Demilitarizing the Battle of the Forms: A Peace Proposal, 1990 Colum. Bus. L. Rev. 553

Section 2-207 of the Uniform Commercial Code, which sets the ground rules for and determines the winner of the “battle of the forms,” has been much discussed and much maligned. Courts and commentators have found § 2-207(3) particularly troublesome as it imposes the “off-the rack” terms of the Uniform Commercial Code on parties who did not agree to these terms. Indeed, § 2-207(3) can result in contracts to which neither side agreed, containing terms which neither side contemplated. This seemingly departs from the philosophy of contract formation based on a meeting of the minds through the free negotiation of the terms of an agreement. Nevertheless, this Note seeks to demonstrate that the proper application of § 2-207(3) will result in fair and efficient contracts which accurately reflect commercial reality.

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