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58. If the retailer sues the manufacturer for breach of contract, will the retailer be entitled to pursue a claim for consequential damages?
Two days after accepting delivery of the laptops, the retailer received the manufacturer's acknowledgment form, which excluded consequential damages. The same day, the retailer discovered that the laptops were defective.
A retailer sent a purchase order to a computer manufacturer requesting the shipment of a specified quantity of laptops. The purchase order stated: «In the event of a breach, the retailer may pursue all remedies available to it under the UCC.» The manufacturer received the purchase order and promptly shipped the laptops to the retailer. The manufacturer sent an acknowledgment form to the retailer four days later.
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A is incorrect. The manufacturer's shipment of the laptops was a reasonable mode of acceptance and created a binding contract between the parties. UCC § 2-206.
B is incorrect. The retailer's order constituted an offer, and a contract was formed when the manufacturer shipped the laptops. The exclusion of consequential damages in the manufacturer's acknowledgment constituted a request to modify that contract. The exclusion would become a term of the parties' agreement only if the retailer assented to it, which did not occur here.
D is incorrect. This answer reaches the correct conclusion using incorrect legal reasoning. This response erroneously assumes that the parties formed a contract under UCC § 2-207(3) by virtue of their conduct and that the supplementary terms would be applied on that basis. Instead, the contract was formed when the manufacturer shipped the laptops and thereby accepted the terms of the retailer's offer, which included consequential damages via the statement «the retailer may pursue all remedies available to it under the UCC.»