What’s So Great about Being the Master of the Offer?
I recently came across an article by Professor Sidney Kwestel that has many good and interesting things to say about the UCC’s famous battle of the forms section, 2-207. However, Professor Kwestel suggests the UCC § 2-207(2)’s “knock out rule” cannot be right because it violates “a basic contract concept–that the offeror is the master of the offer.”
I’ve always understood the “rule” that the offeror is the master of the offer to mean only that: (1) the offeror is free to revoke the offer at any time before acceptance; and (2) under the common law, the offeror can treat any purported acceptance that is not a mirror image of the offer as a rejection of the offer and a counteroffer. In my view, the notion is hardly a “basic concept.” It’s more like a slogan. You think you are the master of your offer. Big deal. I’ll make you a counteroffer. Then I’m the master. Oooh la la.
Professor Kwestel thinks it absurd that an expression of assent could operate as assent to some terms but not others. However, the result is worse for the offeror under the common law. Under the last shot rule, the counterofferor’s terms do not just knock out the offeror’s terms, they replace them. Since the UCC’s version of the battle of the forms eliminates both the mirror image rule and the last shot rule, it reduces the slogan to its first meaning — it only permits revocation at any time before acceptance. The result is much more even-handed as to whose terms govern, and I count that as a win.
Certainly there are problems about what to do with different terms under § 2-207, and Professor Kwestel’s article is very good about illuminating the difficulty navigating between the text of the section and the reporter’s comments. While I can easily concede that it has its flaws, I think the problems with the knock-out rule are more textual than conceptual.