Uniroyal, Inc. v. Chambers Gasket & Manufacturing Co.

CONCURRING OPINION

Buchanan, C.J.

I concur in the result reached by the majority.¹ Unlike them I would be more comfortable exploring further the conduct of the parties to determine if a contract has been freely entered into before resorting to the UCC § 2-207(3). In a word, it is preferable not to narrow the area of freedom of contract.

Uniroyal’s order acknowledgment contained language expressly conditioning acceptance on Chambers’ assent to the additional terms contained in the “Conditions of Sale”. Based on this finding, the majority holds that the writings of the parties did not create a contract and, consequently, their transaction is governed by UCC § 2-207(3).

To me the inquiry should not stop there. I see Uniroyal’s order acknowledgment as a counteroffer extended to Chambers, see C. Itoh & Co. v. Jordan International Co. (7th Cir. 1977), 552 F.2d 1228; Construction Aggregates Corp. v. Hewitt-Robbins, Inc. (7th Cir. 1968), 404 F.2d 505, cert. denied, 395 U.S. 921, thereby necessitating an examination of Chambers’ assent in order to determine if an express contract came into being between the parties. Unfortunately that assent was based on Chambers’ inaction (silence) which has not been recognized as a mode of acceptance in this kind of a context.² See 1 W. HAWKLAND, A Transactional Guide to the Uniform Commercial Code § 1.090303 at 19-20 (1964).

So no contract was created by the writings of the parties and UCC § 2-207(3) must be applied. My method of arriving there works less of a restraint on freedom of contract — an approach sanctioned in 3 R. Duesenberg & L. King, Uniform Commercial Code Service (MB) § 3.06[3] (1977):

[I]t must be recognized that the offeree should not be compelled to accept the terms of the offer if he does not want them, and he ought also to be free to respond with a counteroffer.

NOTE — Reported at 380 N.E.2d 571.

1 . Roto-Lith is distinguishable on its facts. There the order acknowledgment appeared to be an unconditional acceptance of the buyer’s offer when in fact the acceptance had incorporated a disclaimer of all warranties, express and implied. The court characterized the response as an acceptance expressly conditional on assent. In the present case, the acceptance, by its very terms, was conditioned on Chambers’ assent to the additional terms.

2 . Also, acceptance by inaction is contrary to the objective of § 2-207, which is to eradicate the last-shot technique available to an offeree under the common law mirror-image rule. See Dorton v. Collins & Aikman Corp. (6th Cir. 1972), 453 F.2d 1161. See also 3 Uniform Commercial Code Service (MB) 3.06[4] 1977.

If, however, Chambers had merely objected properly to one of the additional terms proposed by Uniroyal this may have provided the required manifestation of assent necessary to bind Chambers to the remaining additional terms. See Construction Aggregates Corp. v. Hewitt-Robins, Inc. (7th Cir. 1968), 404 F.2d 505, cert. denied, 395 U.S. 921 (1969).