《美国统一商法典》的合同成立与格式之争

第一节　《美国统一商法典》的合同成立与格式之争

合同是双方关于交易的协议。合同的核心是双方达成合意，当事人意思表示一致使合同成立。现代合同法理论要求由一个要约和受要约人的承诺导致成立合同。随着社会经济的发展，交易的数量大大增加，为了便于交易和节约交易成本，买卖双方会通过预先起草的格式条款跟对方进行交易的磋商。由于这些文件都是从各自利益出发的，所以内容往往存在重大冲突。而最终的合同文本是否包括格式条款，或者包括哪方提出的格式条款，都是需要解决的问题，格式之争由此产生。

传统普通法中的“镜像原则”要求承诺必须与要约的内容一致。如果受要约人在承诺中将要约的内容加以添加、限制、或修改，就不是承诺而是一项反要约，是对原要约的拒绝，它必须经过原要约人的承诺才能成为合同。

统一商法典§ 2－207改革了英美普通法中传统的“镜像原则”，规定“(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”。在第(2)款中，规定了对于添加条款的处理，“(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”。如果双方之间的文件或口头协商不能构成合同成立的条件，而双方又已经履行了交易， § 2－207第(3)款规定了解决的方式:“(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 anyother provisions of this Act”。

案例4

Hill v.Gateway 2000，Inc.

105 F.3d 1147， 65 USLW 2458，RICO Bus.

Disp.Guide 9183， 31 UCC Rep.Serv.2d 303

Buyer of computer who had purchased computer through telephone order brought action against manufacturer，in which civil Racketeer Influenced and Corrupt Organizations Act(RICO)claim and other claims were asserted.Manufacturer sought enforcement of arbitration clause which had been included in terms sent to buyer in box in which computer was shipped，and the United States District Court for the Northern District of Illinois，Suzanne B.Conlon，J.，refused to enforce agreement.Manufacturer appealed，and the Court of Appeals，Easterbrook，Circuit Judge，held that terms sent in box，which stated that they governed sale unless computer was returned within 30 days，were binding on buyer，who did not return computer.

Vacated and remanded.

EASTERBROOK，Circuit Judge.

A customer picks up the phone，orders a computer，and gives a credit card number.Presently a box arrives，containing the computer and a list of terms，said to govern unless the customer returns the computer within 30 days.Are these terms effective as the parties' contract，or is the contract term-free because the order-taker did not read any terms over the phone and elicit the customer's assent?

One of the terms in the box containing a Gateway 2000 system was an arbitration clause.Rich and Enza Hill，the customers，kept the computer more than 30 days before complaining about its components and performance.They filed suit in federal court arguing，among other things，that the product's shortcomings make Gateway a racketeer(mail and wire fraud are said to be the predicate offenses)，leading to treble damages under RICO for the Hills and a class of all other purchasers.Gateway asked the district court to enforce the arbitration clause;the judge refused，writing that “the present record is insufficient to support a finding of a valid arbitration agreement between the parties or that the plaintiffs were given adequate notice of the arbitration clause.”Gateway took an immediate appeal，as is its right.9 U.S.C.§ 16(a)(1)(A)．

［1］［2］The Hills say that the arbitration clause did not stand out:they concede noticing the statement of terms but deny reading it closely enough to discover the agreement to arbitrate，and they ask us to conclude that they therefore may go to court.Yet an agreement to arbitrate must be enforced“save upon such grounds as exist at law or in equity for the revocation of any contract.”9 U.S.C.§ 2.Doctor's Associates，Inc.v.Casarotto，517U.S.681， 116 S.Ct.1652， 134 L.Ed.2d 902(1996)，holds that this provision of the Federal Arbitration Act is inconsistent with any requirement that an arbitration clause be prominent.A contract need not be read to be effective;people who accept take the risk that the unread terms may in retrospect prove unwelcome.Carr v.CIGNA Securities，Inc.，95 F.3d 544，547(7th Cir.1996);Chicago Pacific Corp.v.Canada Life Assurance Co.，850 F.2d 334(7th Cir.1988)．Terms inside Gateway's box stand or fall together.If they constitute the parties' contract because the Hills had an opportunity to return the computer after reading them，then all must be enforced.

ProCD，Inc.v.Zeidenberg，86 F.3d 1447(7th Cir.1996)，holds that terms inside a box of software bind consumers who use the software after an opportunity to read the terms and to reject them by returning the product.Likewise，Carnival Cruise Lines，Inc.v.Shute，499 U.S.585，111 S.Ct.1522， 113 L.Ed.2d 622(1991)，enforces a forum-selection clause that was included among three pages of terms attached to a cruise ship ticket.ProCD and Carnival Cruise Lines exemplify the many commercial transactions in which people pay for products with terms to follow;ProCD discusses others.86 F.3d at 1451－52.The district court concluded in ProCD that the contract is formed when the consumer pays for the software;as a result，the court held，only terms known to the consumer at that moment are part of the contract，and provisions inside the box do not count.Although this is one way a contract * 1 149 could be formed， it is not the only way :“A vendor， as master of the offer，may invite acceptance by conduct，and may propose limitations on the kind of conduct that constitutes acceptance.A buyer may accept by performing the acts the vendor proposes to treat as acceptance.”Id.at 1452.Gateway shipped computers with the same sort of accept-or-return offer ProCD made to users of its software.ProCD relied on the Uniform Commercial Code rather than any peculiarities of Wisconsin law;both Illinois and South Dakota，the two states whose law might govern relations between Gateway and the Hills，have adopted the U.C.C.;neither side has pointed us to any atypical doctrines in those states that might be pertinent;ProCD therefore applies to this dispute.

Plaintiffs ask us to limit ProCD to software，but where's the sense in that? ProCD is about the law of contract，not the law of software.Payment preceding the revelation of full terms is common for air transportation，insurance，and many other endeavors.Practical considerations support allowing vendors to enclose the full legal terms with their products.Cashiers cannot be expected to read legal documents to customers before ringing up sales.If the staff at the other end of the phone for direct-sales operations such as Gateway's had to read the four-page statement of terms before taking the buyer's credit card number，the droning voice would anesthetize rather than enlighten many potential buyers.Others would hang up in a rage over the waste of their time.And oral recitation would not avoid customers' assertions(whether true or feigned)that the clerk did not read term X to them，or that they did not remember or understand it.Writing provides benefits for both sides of commercial transactions.Customers as a group are better off when vendors skip costly and ineffectual steps such as telephonic recitation，and use instead a simple approve-or-return device.Competent adults are bound by such documents，read or unread.For what little it is worth，we add that the box from Gateway was crammed with software.The computer came with an operating system，without which it was useful only as a boat anchor.See Digital Equipment Corp.v.Uniq Digital Technologies，Inc.，73 F.3d 756，761(7th Cir.1996)．Gateway also included many application programs.So the Hills' effort to limit ProCD to software would not avail them factually，even if it were sound legally—which it is not.

For their second sally，the Hills contend that ProCD should be limited to executory contracts(to licenses in particular)，and therefore does not apply because both parties' performance of this contract was complete when the box arrived at their home.This is legally and factually wrong:legally because the question at hand concerns the formation of the contract rather than its performance， and factually because both contracts were incompletely performed.ProCD did not depend on the fact that the seller characterized the transaction as a license rather than as a contract;we treated it as a contract for the sale of goods and reserved the question whether for other purposes a “license”characterization might be preferable.86 F.3d at 1450.All debates about characterization to one side，the transaction in ProCD was no more executory than the one here:Zeidenberg paid for the software and walked out of the store with a box under his arm， so if arrival of the box with the product ends the time for revelation of contractual terms，then the time ended in ProCD before Zeidenberg opened the box.But of course ProCD had not completed performance with delivery of the box， and neither had Gateway.One element of the transaction was the warranty，which obliges sellers to fix defects in their products.The Hills have invoked Gateway's warranty and are not satisfied with its response，so they are not well positioned to say that Gateway's obligations were fulfilled when the motor carrier unloaded the box.What is more，both ProCD and Gateway promised to help customers to use their products.Longterm service and information obligations are common in the computer business，on both hardware and software sides.Gateway offers“lifetime service”and has a round-the-clock telephone hotline to fulfil this promise.Some vendors spend more money helping customers use their products than on developing and manufacturing them.The document in Gateway's box includes promises of * 1 150 future performance that some consumers value highly;these promises bind Gateway just as the arbitration clause binds the Hills.

Next the Hills insist that ProCD is irrelevant because Zeidenberg was a “merchant”and they are not.Section 2－207(2)of the U.C.C.，the infamous battle-of-the-forms section，states that “additional terms ［following acceptance of an offer］are to be construed as proposals for addition to a contract.Between merchants such terms become part of the contract unless...”.Plaintiffs tell us that ProCD came out as it did only because Zeidenberg was a “merchant”and the terms inside ProCD's box were not excluded by the “unless”clause.This argument pays scant attention to the opinion in ProCD， which concluded that， when there is only one form ， “sec.2－207 is irrelevant.”86 F.3d at 1452.The question in ProCD was not whether terms were added to a contract after its formation，but how and when the contract was formed—in particular，whether a vendor may propose that a contract of sale be formed，not in the store(or over the phone)with the payment of money or a general“send me the product， ”but after the customer has had a chance to inspect both the item and the terms.ProCD answers “yes， ”for merchants and consumers alike.Yet again， for what little it is worth we observe that the Hills misunderstand the setting of ProCD.A“merchant”under the U.C.C.“means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction”，§ 2－104(1)．Zeidenberg bought the product at a retail store，an uncommon place for merchants to acquire inventory.His corporation put ProCD's database on the Internet for anyone to browse，which led to the litigation but did not make Zeidenberg a software merchant.

At oral argument the Hills propounded still another distinction:the box containing ProCD's software displayed a notice that additional terms were within，while the box containing Gateway's computer did not.The difference is functional，not legal.Consumers browsing the aisles of a store can look at the box，and if they are unwilling to deal with the prospect of additional terms，they can leave the box alone，avoiding the transactions costs of returning the package after reviewing its contents.Gateway's box，by contrast，is just a shipping carton;it is not on display anywhere.Its function is to protect the product during transit， and the information on its sides is for the use of handlers rather than would-be purchasers.

Perhaps the Hills would have had a better argument if they were first alerted to the bundling of hardware and legal-ware after opening the box and wanted to return the computer in order to avoid disagreeable terms，but were dissuaded by the expense of shipping.What the remedy would be in such a case—could it exceed the shipping charges? —is an interesting question，but that need not detain us because the Hills knew before they ordered the computer that the carton would include some important terms，and they did not seek to discover these in advance.Gateway's ads state that their products come with limited warranties and lifetime support.How limited was the warranty—30 days，with service contingent on shipping the computer back，or five years，with free onsite service? What sort of support was offered? Shoppers have three principal ways to discover these things.First， they can ask the vendor to send a copy before deciding whether to buy.The Magnuson-Moss Warranty Act requires firms to distribute their warranty terms on request， 15 U.S.C.§ 2302(b)(1)(A);the Hills do not contend that Gateway would have refused to enclose the remaining terms too.Concealment would be bad for business，scaring some customers away and leading to excess returns from others.Second，shoppers can consult public sources(computer magazines，the Web sites of vendors)that may contain this information.Third， they may inspect the documents after the product's delivery.Like Zeidenberg，the Hills took the third option.By keeping the computer beyond 30 days，the Hills accepted Gateway's offer，including the arbitration clause.

思考题

1.简述本案基本事实。

2.原告主张其并未读过相关条款内容是否影响合同成立?

3.本案合同何时成立，本案中的要约和承诺分别是如何构成的?

4.格式条款是否成为合同一部分?

5.本案与ProCD，Inc.v.Zeidenberg案的区别是否导致该案规则不能适用?

案例5

Daitom，Inc.v.Pennwalt Corp.

741 F.2d 1569 C.A.Kan.，1984.

I.Statement of The Case

This is an appeal from the grant of summary judgment against Daitom，Inc.(Daitom)，the plaintiff below.The result was dismissal by the United States District Court for the District of Kansas of all three counts of Daitom's complaint.

Daitom had brought this diversity action in federal court on March 7， 1980 against Pennwalt Corporation and its Stokes Vacuum Equipment Division(Pennwalt)．Counts I and II of Daitom's complaint alleged breach of various express and implied warranties and Count III alleged negligent design and manufacture by Pennwalt of certain rotary vacuum drying machines sold to and used commercially by Daitom in the production of a vitamin known properly as dextro calcium pantothenate and commonly as Vitamin B－5.

Daitom is a Delaware chartered corporation having its principal place of business in Kansas.It was formed to implement a joint venture between Thompson-Hayward Chemical Company，Inc.of Kansas City，Kansas and Daiichi-Seiyakii Co.，Ltd.，of Tokyo，Japan.Pennwalt is a Pennsylvania chartered corporation with its principal place of business in Pennsylvania.

Daitom requests a reversal of the district court's grant of summary judgment against Daitom on all counts of its complaint and seeks a remand for a trial on the merits.

We have concluded that there should be a reversal with respect to Counts I and II，together with a remand to the district court for a trial on the merits of those claims.On the other hand，we have concluded that there should be an affirmance of the summary judgment against Daitom on Count III of its complaint.

II.Facts

The essential facts so far as they pertain to the issues presented in this appeal are as follows.

For the purpose of implementing its joint venture，Daitom planned to construct and operate a manufacturing plant to commercially produce dextro calcium pantothenate.The design of the plant was undertaken and handled on behalf of Daitom by Kintech Services，Inc.(which company will be referred to as Kintech)，an engineering design firm located in Cincinnati，Ohio.Kintech had the responsibility not only for designing the plant，but also for investigating various means of drying the product during the production process，and for negotiating the purchase of certain equipment to be used in the plant.Included in the equipment was automated drying equipment to be used in removing methonol and water from the processed vitamin as part of the purification process.

There were numerous tests made and conducted at Kintech's request by equipment manufacturers.Kintech formulated specifi-cations for the automated drying equipment.(This is referred to as Kintech Specification 342，Record，Volume I，at 59－65)．On behalf of Daitom，Kintech invited various vendors to bid on the needed equipment.

Pennwalt，on September 7， 1976，submitted a proposal for the sale of two rotary vacuum dryers with dust filters and heating systems to dry dextro calcium pantothenate.The typewritten proposal specified the equipment to be sold，the F.O.B.price，and delivery and payment terms.A pre-printed conditions of sale form was also attached to the proposal and explicitly made an integral part of the proposal by the typewritten sheet.

* 1 572 Kintech recommended to Daitom that Pennwalt's proposal be accepted and on October 5， 1976，well within the thirty-day acceptance period specified in the proposal，Daitom issued a purchase order for the Pennwalt equipment.The purchase order consisted of a pre-printed form with the identification of the specific equipment and associated prices typewritten in the appropriate blank spaces on the front together with seventeen lengthy “boilerplate”or “standard”terms and conditions of sale on the back.In addition，on the front of the purchase order in the column marked for a description of the items purchased，Daitom typed the following:

Rotary vacuum dryers in accordance with Kintech Services， Inc.specification 342 dated August 20，1976，and in accordance with Stokes proposal dated September 7， 1976.

The two rotary vacuum dryers and the equipment that went along with them were manufactured by Pennwalt and delivered to Daitom's plant in early May 1977.For the reason that there had been no construction of Daitom's plant，the crated equipment was not immediately installed.Instead，it was stored outside in crates.On June 15，1978，the dryers were finally installed and first operated by Daitom.Daitom notified Pennwalt of serious problems with the operation of the dryers on June 17， 1978.

Daitom's contention was that the dryers suffered from two severe defects:(1)they were delivered with misaligned agitator blades causing a scraping and damaging of the dryer interiors and an uneven distribution of the products being dried;and(2)they were undersized necessitating an overloading of the dryers and a “lumping up”of the product rendering it unsuitable for further use.Pennwalt's repair personnel visited the Daitom plant to investigate the alleged operating difficulties，but Daitom contends the dryers were not repaired and have never performed as required under the specifications and as represented by Pennwalt.This was the basis for the lawsuit.

This suit was brought in federal court on March 7， 1980，after Pennwalt's alleged failure to correct the difficulties with the dryers.On Pennwalt's motion，the district court granted summary judgment against Daitom on all three counts of its complaint.The court dismissed Counts I and II after applying section 2－207 of the Uniform Commercial Code(U.C.C.)and finding that Daitom's breach of warranties claims were barred by the one-year period of limitations specified in Pennwalt's proposal.The court further concluded that alleged damages in Count III for the negligent design and manufacture of the dryers were not available in tort;the sole remedy being in an action for breach of warranties which here was barred by the period of limitations.Consequently， summary judgment was granted against Daitom.Daitom's subsequent motion for reconsideration was denied by the district court on June 3， 1982，and following that，this appeal took place.

III.Discussion

A.The Issues

It is to be noted that the district court granted summary judgment against Daitom on Counts I and II of the complaint，finding the breach of warranties claim barred by the one-year period of limitations which was set forth in Pennwalt's proposal.In ruling against Daitom the court followed a three step analysis.First，it concluded that pursuant to U.C.C.§ 2－207(1)，a written contract for the sale of the rotary dryers was formed by Pennwalt's September 7，1976 proposal and Daitom's October 5，1976 purchase order accepting that proposal.Second，the court found that the one-year period of limitations specified in Pennwalt's proposal and shortening the typical four-year period of limitations available under the U.C.C.became part of the contract of sale and governed the claims for breach of warranties.Thus，the court accepted the proposal that was contained in the documents that had been submitted by the defendant-appellee.Third，the court concluded that the one-year period of limitations was not tolled by any conduct of * 1 573 Pennwalt's，so that consequently，Daitom's claims were barred because they were brought after the expiration of the one-year limitations period.The view we have of the submission and response is that the approval was initial and general and contemplated further discussion and improvement.

The circumstances surrounding the delivery of this equipment and what occurred thereafter is of high importance.The equipment was delivered in crates and boxes，and at that time Daitom had no plant.Instead of seeking to protect the equipment in some way，Pennwalt simply delivered the boxes and left.The documents which were part of the delivery provided for this one-year period of limitations specified in the Pennwalt proposal.Seemingly，this conduct on the part of Pennwalt in making a quick delivery and quick departure took hold in connection with the motion for summary judgment，the court ruling that more than one year had passed before they were able to try out the machinery and discover the defects.The suggestion is made as to how this machinery could have been utilized or contested because of the conditions that were present.Why，then should the one-year limitations period，created by Pennwalt，be allowed to take effect?

Daitom has challenged the district court's findings as to the terms which became a part of the contract.Daitom argues that its October 5， 1976 purchase order did not constitute an acceptance of Pennwalt's September 7，1976 proposal.Instead，Daitom claims that its purchase order explicitly made acceptance conditional on Pennwalt's assent to the additional or different terms in the purchase order.As a consequence，Daitom argues，pursuant to U.C.C.§ 2－207(1)，［FN1］the exchanged writings of the parties did not form a contract，because Pennwalt failed to assent to the additional or different terms in the purchase order.The most relevant additional or different terms Daitom alleges were in its purchase order were the terms reserving all warranties and remedies available in law，despite Pennwalt's limitation of warranties and remedies in its proposal.In a sense Pennwalt argues it enjoyed an exclusive right to set the conditions.

Daitom argues that on their face the writings failed to create a contract，and，instead，that a contract was to be formed by the conduct of both parties，pursuant to § 2－207(3)， and the resulting contract consisted of the terms on which the writings agreed， together with“any supplementary terms incorporated under any other provision of the U.C.C.”Therefore，Daitom concludes，the resulting contract governing the sale of the rotary dryers incorporated the U.C.C.provisions for express warranties(§ 2－313)，implied warranties(§ § 2－314， 2－315)，and a four-year period of limitations.

As an alternative argument，Daitom contends that even if its October 5，1976 purchase order did constitute an acceptance of Pennwalt's September 7，1976 proposal and did form a contract，all conflicting terms between the two writings were“knocked out”and did not become part of the resulting contract，because of their being at odds one with the other.Therefore，Daitom concludes once again that the resulting contract consisted of only those terms in which the writings agreed and any supplementary or“gap-filler”terms incorporated under the provisions of the U.C.C.;specifically § § 2－313，2－314，2－315，2－725.

Daitom makes a further argument which has some appeal and that is that even if the one-year period of limitations specified in Pennwalt's proposal became a part of the sales contract，it was tolled by Pennwalt's wrongful conduct，which included fraudulent concealment of the equipment's defects * 1 574 and failure of the essential purpose of the limited remedies.Since this court's decision does not rely on the question of the tolling of the limitations period，we will not devote detailed argument to this.

*　*　*

C.The Writings and the Contract

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.

It is essentially uncontested that Pennwalt's proposal constituted an offer.The proposal set forth in some detail the equipment to be sold to Daitom，the price，the terms of shipment，and specifically stated that the attached terms and conditions were an integral part of the proposal.One of those attached terms and conditions of sale limited the warranties to repair and replacement of defective parts and limited the period of one year from the date of delivery for any action for breach of warranty.

The proposal was sent to Kintech and forwarded to Daitom with a recommendation to accept the proposal.Daitom sent the October 5，1976 purchase order to Pennwalt.This purchase order constituted an acceptance of Pennwalt's offer and formed a binding contract for the sale only pursuant to § 2－207(1)，despite the statement of terms additional to or different from those in the offer.［FN4］But these terms were not without meaning or consequence.However，the acceptance was not expressly conditioned on Pennwalt accepting these additional or different terms.

There is a provision which Daitom contends made the acceptance expressly conditional on Pennwalt's accepting the additional or different terms which appeared in the pre-printed，standard“boilerplate”provisions on the back of the purchase order.It stated:

Acceptance.Immediate acceptance is required unless otherwise provided herein.It is understood and agreed that the written acceptance by Seller of this purchase order or the commencement of any work performance of any services hereunder * 1 576 by the Seller，(including the commencement of any work or the performance of any service with respect to samples)，shall constitute acceptance by Seller of this purchase order and of all the terms and conditions of such acceptance is expressly limited to such terms and conditions，unless each deviation is mutually recognized therefore in writing.(Emphasis added.)

This language does not preclude the formation of a contract by the exchanged writings pursuant to § 2－207(1)．Nor does it dictate the adoption of a conclusion holding that as a result the acceptance provided the applicable terms of the resulting contract.

First，it is well established that a contract for the sale of goods may be made in any manner to show agreement，requiring merely that there be some objective manifestation of mutual assent，but that there must be.There is not a contract until it takes place.See U.C.C.§ 2－204;Ore ＆ Chemical Corporation v.Howard Butcher Trading Corp.，455 F.Supp.1150，1152(E.D.Pa.1978)．Here there is such an objective manifestation of agreement on essential terms of equipment specifications，price，and the terms of shipment and payment，all of which took place before the machinery was put to any test.The purchase order explicitly referred to and incorporated on its front Kintech's equipment specifications and Pennwalt's proposal.But we are unwilling to hold such a typewritten reference and incorporation by Daitom brings the matter to a close.The acceptance and warranty terms as provided for by the above excerpted acceptance clause，does manifest a willingness on all essential terms to accept the offer and form a contract.Cf.，Daitom v.Henry Vogt Machine Co.，No.80－2081(D.Kan.，unpublished 2/22/82)(In that case the court held that under identical factual circumstances and involving the identical purchase order form language， such typewritten reference and incorporation of the offer constituted a written modification of the purchase order's boilerplate acceptance terms to conform to those in the offer.)This was，of course，before an attempt was made to use the equipment.

Second，the boilerplate provision does not directly address the instant case.The purchase order is drafted principally as an offer inviting acceptance.Although this court recognizes that the form may serve a dual condition depending on the circumstances，the imprecision of language that permits such service detracts from Daitom's argument of conditional acceptance.

Third，the courts are split on the application of § 2－207(1)and the meaning of“expressly made conditional on assent to the additional or different terms.”See Boese-Hilburn Co.v.Dean Machinery，616 S.W.2d 520(Mo.App.1981)．Roto-Lith Ltd.v.F.P.Bartlett ＆ Co.，Inc.，297 F.2d 497(1st Cir.1962)represents one extreme of the spectrum，that the offeree's response stating a term materially altering the contractual obligations solely to the disadvantage of the offeror constitutes a conditional acceptance.The other extreme of the spectrum is represented by Dorton v.Collins ＆ Aikman Corporation， 453 F.2d 1161(6th Cir.1972)，in which case the court held that the conditional nature of the acceptance should be so clearly expressed in a manner sufficient to notify the offeror that the offeree is unwilling to proceed with the transaction unless the additional or different terms are included in the contract.The middle of the spectrum providing that a response merely “predicating”acceptance on clarification， addition or modification is a conditional acceptance is represented by Construction Aggregates Corp.v.Hewitt-Robins， Inc.， 404 F.2d 505(7th Cir.1968)， cert.denied， 395 U.S.921， 89 S.Ct.1774， 23 L.Ed.2d 238(1969)．

The facts of this case，Daitom asserts，are not of a character that would suggest that there had been an unequivocal acceptance.The defendant-appellee was aware that the machinery had not even been tried.Once it was tried，it broke down in a very short time.It is hard to see a justifiable acceptance，Daitom asserts，when the buyer does not even know whether it works，and，in fact，learns after the fact，that it * 1 577 does not work.This fact alone renders the“contract”to be questionable.

The better view as to the meaning and application of “conditional acceptance， ”and the view most likely to be adopted by Pennsylvania，is the view in Dorton that the offeree must explicitly communicate his or her unwillingness to proceed with the transaction unless the additional or different terms in its response are accepted by the offeror.

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.

While the district court's analysis undertook to resolve the issue without considering the question of the application of § 2－207(2)to additional or different terms，we cannot accept its approach or its conclusion.We are unable to ignore the plain implication of Daitom's reservation in its boilerplate warranties provision of all its rights and remedies available at law.Such an explicit reservation impliedly reserves the statutory period of limitations;without such a reservation，all other reservations of actions and remedies are without effect.

The statutory period of limitations under the U.C.C.is four years after the cause of action has accrued.U.C.C.§ 2－725(1)．Were we to determine that this four-year period became a part of the contract rather than the shorter one-year period，Daitom's actions on breach of warranties were timely brought and summary judgment against Daitom was error.

We realize that our conclusion requires an inference to be drawn from a construction of Daitom's terms;however，such an inference and construction are consistent with the judicial reluctance to grant summary judgment where there is some reasonable doubt over the existence of a genuine material fact.See Williams v.Borden，Inc.，637 F.2d 731，738(10th Cir.1980)．* 1 578 When taking into account the circumstances surrounding the application of the one-year limitations period，we have little hesitation in adopting the U.C.C.'s four-year limitations reservation，the application of which permits a trial on the merits.Thus， this court must recognize that certain terms in Daitom's acceptance differed from terms in Pennwalt's offer and decide which become part of the contract.The district court certainly erred in refusing to recognize such a conflict.

The difficulty in determining the effect of different terms in the acceptance is the imprecision of drafting evident in § 2－207.The language of the provision is silent on how different terms in the acceptance are to be treated once a contract is formed pursuant to § 2－207(1)．That section provides that a contract may be formed by exchanged writings despite the existence of additional or different terms in the acceptance.Therefore，an offeree's response is treated as an acceptance while it may differ substantially from the offer.This section of the provision，then，reformed the mirror-image rule;that common law legal formality that prohibited the formation of a contract if the exchanged writings of offer and acceptance differed in any term.

Once a contract is recognized pursuant to § 2－207(1)，2－207(2)provides the standard for determining if the additional terms stated in the acceptance become a part of the contract.Between merchants，such additional terms become part of the resulting contract unless(1)the offer expressly limited acceptance to its terms，(2)the additional terms materially alter the contract obligations，or(3)the offeror gives notice of his or her objection to the additional terms within a reasonable time.Should any one of these three possibilities occur，the additional terms are treated merely as proposals for incorporation in the contract and absent assent by the offeror the terms of the offer control.In any event，the existence of the additional terms does not prevent a contract from being formed.

Section 2－207(2)is silent on the treatment of terms stated in the acceptance that are different，rather than merely additional，from those stated in the offer.It is unclear whether “different”terms in the acceptance are intended to be included under the aegis of “additional”terms in § 2－207(2)and，therefore，fail to become part of the agreement if they materially alter the contract.Comment 3 suggests just such an inclusion.［FN7］However，Comment 6 suggests that different terms in exchanged writings must be assumed to constitute mutual objections by each party to the other's conflicting terms and result in a mutual“knock-out”of both parties' conflicting terms;the missing terms to be supplied by the U.C.C.'s“gap-filler”provisions.［FN8］At least one commentator，in support of this view，has suggested that the drafting history of the provision indicates that the word “different”was intentionally deleted from the final draft of § 2－207(2)to * 1 579 preclude its treatment under that subsection.［FN9］The plain language，comments，and drafting history of the provision，therefore，provide little helpful guidance in resolving the disagreement over the treatment of different terms pursuant to § 2－207.

Despite all this，the cases and commentators have suggested three possible approaches.The first of these is to treat “different”terms as included under the aegis of “additional”terms in § 2－207(2)．Consequently，different terms in the acceptance would never become part of the contract，because，by definition，they would materially alter the contract(i.e.，the offeror's terms)．Several courts have adopted this approach.E.g.，Mead Corporation v.McNally-Pittsburg Manufacturing Corporation， 654 F.2d 1197(6th Cir.1981)(applying Ohio law);Steiner v.Mobil Oil Corporation，20 Cal.3d 90，141 Cal.Rptr.157， 569 P.2d 751(1977);Lockheed Electronics Company，Inc.v.Keronix，Inc.， 114 Cal.App.3d 304， 170 Cal.Rptr.591(1981)．

The second approach，which leads to the same result as the first，is that the offeror's terms control because the offeree's different terms merely fall out;§ 2－207(2)cannot rescue the different terms since that subsection applies only to additional terms.Under this approach，Comment 6(apparently supporting a mutual rather than a single term knockout)is not applicable because it refers only to conflicting terms in confirmation forms following oral agreement，not conflicting terms in the writings that form the agreement.This approach is supported by Professor Summers.J.J.White ＆ R.S.Summers，U.C.C.，§ 1－2，at 29(2d ed.1980)．

The third，and preferable approach，which is commonly called the “knock-out”rule，is that the conflicting terms cancel one another.Under this view the offeree's form is treated only as an acceptance of the terms in the offeror's form which did not conflict.The ultimate contract，then，includes those non-conflicting terms and any other terms supplied by the U.C.C.，including terms incorporated by course of performance(§ 2－208)，course of dealing(§ 1－205)，usage of trade(§ 1－205)，and other“gap fillers”or “off-the-rack”terms(e.g.，implied warranty of fitness for particular purpose，§ 2－315)．As stated previously，this approach finds some support in Comment 6.Professor White supports this approach as the most fair and consistent with the purposes of § 2－207.White ＆ Summers，supra，at 29.

We are of the opinion that this is the more reasonable approach，particularly when dealing with a case such as this where from the beginning the offeror's specified period of limitations would expire before the equipment was even installed.The approaches other than the“knock-out”approach would be inequitable and unjust because they invited the very kind of treatment which the defendant attempted to provide.

Thus，we are of the conclusion that if faced with this issue the Pennsylvania Supreme Court would adopt the“knock-out”rule and hold here that the conflicting terms in Pennwalt's offer and Daitom's acceptance regarding the period of limitations and applicable warranties cancel one another out.Consequently，the other provisions * 1 580 of the U.C.C.must be used to provide the missing terms.

This particular approach and result are supported persuasively by the underlying rationale and purpose behind the adoption of § 2－207.As stated previously，that provision was drafted to reform the infamous common law mirror-image rule and associated last-shot doctrine that enshrined the fortuitous positions of senders of forms and accorded undue advantages based on such fortuitous positions.White ＆ Summers，supra at 25.To refuse to adopt the “knock-out”rule and instead adopt one of the remaining two approaches would serve to re-enshrine the undue advantages derived solely from the fortuitous positions of when a party sent a form.Cf.， 3 Duesenberg ＆ King at 93(1983 Supp.)．This is because either approach other than the“knock-out”rule for different terms results in the offeror and his or her terms always prevailing solely because he or she sent the first form.Professor Summers argues that this advantage is not wholly unearned，because the offeree has an opportunity to review the offer，identify the conflicting terms and make his or her acceptance conditional.But this joinder misses the fundamental purpose of the U.C.C.in general and § 2－207 in particular，which is to preserve a contract and fill in any gaps if the parties intended to make a contract and there is a reasonable basis for giving an appropriate remedy.U.C.C.§ 2－204(3);§ 2－207(1);§ 2－207(3)．Thus，this approach gives the offeree some protection.While it is laudible for business persons to read the fine print and boilerplate provisions in exchanged forms，there is nothing in § 2－207 mandating such careful consideration.The provision seems drafted with a recognition of the reality that merchants seldom review exchanged forms with the scrutiny of lawyers.The“knock-out”rule is therefore the best approach.Even if a term eliminated by operation of the“knock-out”rule is reintroduced by operation of the U.C.C.'s gap-filler provisions，such a result does not indicate a weakness of the approach.On the contrary，at least the reintroduced term has the merit of being a term that the U.C.C.draftpersons regarded as fair.

We now address the question of reverse and remand regarding Counts I and II.The result of this court's holding is that the district court erred in granting summary judgment against Daitom on Counts I and II of its complaint.Operation of the“knock-out”rule to conflicting terms results in the instant case in the conflicting terms in the offer and acceptance regarding the period of limitations and applicable warranties cancelling.In the absence of any evidence of course of performance，course of dealing，or usage of trade providing the missing terms，§ § 2－725(1)，2－313，2－314，2－315 may operate to supply a four-year period of limitations，an express warranty，［FN10］an implied warranty of merchantability，and an implied warranty of fitness for a particular purpose，respectively.The ruling of the district court on Counts I and II does not invite this kind of a broad inquiry， and thus， we must recognize the superiority in terms of justice of the“knock-out”rule.Consequently，the ruling of the district court on Counts I and II must be reversed and the matter remanded for trial consistent with this court's ruling.

Accordingly，the district court correctly concluded that Daitom's requested damages are not recoverable in tort.The court's summary judgment ruling against Daitom on Count III，therefore，should be affirmed.As explained above，we reverse the trial court with respect to Counts I and II.The cause is remanded for further proceedings consistent with this opinion.

BARRETT，Circuit Judge，dissenting:

I respectfully dissent.Insofar as the issue of contract formation is concerned in this case，we are confronted with a “battle of the forms”case involving the interpretation and application of U.C.C.§ 2－207.I would affirm.

Pennwalt's proposal of September 7，1976，was an “offer.”It was submitted to Daitom in response to solicitations initiated by Daitom and it contained specific terms * 1 583 relating to price， delivery dates， etc.， and its terms were held“open”for Daitom's acceptance within 30 days.In my view，Daitom accepted the offer with its purchase order.That order repeated the quantity，model number，and price for the items as those terms appeared in the Pennwalt proposaland， byreference， itincorporatedfourpagesof specifications attached to Pennwalt's proposal or “offer.”The purchase order did contain some different and additional language from that contained in Pennwalt's proposal.However，the Code has rejected the old mirror image rule.Thus，I agree with the district court's finding/ruling that a contract was formed in the circumstances described.

I also agree with the district court's conclusion that the terms of Pennwalt's proposal constituted the “terms of the contract.”I do not agree，as Daitom argues，that its“acceptance”was made“conditional”upon Pennwalt's assent to the additional/different terms set forth in Daitom's purchase order.The court correctly found no such express condition in Daitom's acceptance.

The“knock-out”rule should not，in my view，be reached in this case.It can be applied only if，as Daitom argues and the majority agrees，the “conflicting terms”cancel each other out.The “knock-out”rule does have substantial support in the law，but I do not believe it is relevant in this case because the only conflicting terms relate to the scope of the warranty.In this case，it is not an important consideration because，pursuant to the express time limitations contained in Pennwalt's“offer， ”Daitom lost its right to assert any warranty claim.There was no term in Daitom's purchase order in conflict with the express one-year limitation within which to bring warranty actions.I agree with the district court's reasoning in rejecting Daitom's contentions that the oneyear limitation period should not apply because(1)the term failed of “its essential purpose”of providing Daitom with a limited remedy under U.C.C.§ 2－719(2)and(2)the time-limit was tolled due to Pennwalt's alleged fraudulent concealment of the defect.I concur with the trial court's finding that Daitom made no showing that the one-year limitation period was unreasonable because of some act of Pennwalt.As to the fraudulent concealment allegation，the court properly observed that Daitom did not plead this claim with the particularity required and，further，that the alleged fraudulent acts were not independent of the alleged breaches proper.

思考题

1.简述本案有关事实。

2.District Court的判决观点是什么?

3.Daitom的抗辩理由是什么?

4.Daitom所主张的构成conditional acceptance的合同依据是什么?

5.法院认为构成conditional acceptance的标准是什么?

6.如果合同成立，应当如何对待acceptance中的different terms?

7.适用knock-out rule的理由是什么?

8.反对意见(dissenting opinion)的理由是什么?

9.本U.C.C.规则与CISG规则的区别是什么?

10.本案事实适用CISG的结果是什么?

11.U.C.C.与CISG的规则哪一个更合理?