SALES TABLE OF CONTENTS. Chapter 1: How to Answer Sales Questions...1. Chapter 2: The Six Types of Sales Questions...2. Chapter 3: Sales Issues...

Transcription

1 SALES TABLE OF CONTENTS Chapter 1: How to Answer Sales Questions....1 Chapter 2: The Six Types of Sales Questions Chapter 3: Sales Issues Chapter 4: Spotting Sales Issues Chapter 5: Sales Rules and Definitions Chapter 6: UCC Sections to Remember.15

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3 SALES Ch. 1: How to Answer Sales Questions 1. DEFINE "CONTRACT" IN AN INTRODUCTION. The answer to every contracts question depends on whether there was a contract at all. This raises the question, "What is a contract?" 2. PROVE THE UCC APPLIES. You don't know how to answer a contract question until you determine the applicable law. Of course, the common law applies to all contract disputes, so NEVER say that the common law does not apply to a contract question. But the UCC modifies the common law application as applied to sales of goods, so "Does the UCC apply?" To answer this question, you must know what "goods" are! 3. DETERMINE THE TYPE OF CONTRACTS QUESTION. There are 6 different types of contract questions. This is true whether the UCC applies or not. UCC exams will ALWAYS have one or more questions FORMATION. So YOU MUST BE PREPARED to analyze contract formation under the UCC principles! SALES ISSUES 1

4 Ch. 2: The Six Types of Sales Questions There are six basic types of contract questions: (1) Formation Questions; (2) Term Disputes; (3) Anticipatory Breach; (4) Defenses; (5) Third Party Questions; and (6) Remedies. 1. FORMATION QUESTIONS These raise the question, "Did a contract ever form?" These questions are characterized by a series of vague communications between the parties leading up to a supposed agreement. For formation questions only go through each communication between the parties one-by-one addressing these issues in this order: Was there a valid OFFER? [ALWAYS an issue.] o Was there manifestation of INTENT? o Not effectively REVOKED? o A GENERAL offer? Was there an ACCEPTANCE of an offer? [ALWAYS an issue.] o Not REJECTED by offeree? o A TIMELY acceptance? o MIRROR IMAGE RULE (Common Law)? o Accepted by SHIPMENT (UCC)? What were the TERMS of the contract? [a possible issue.] o Is it unequivocally clear the offer is for a UNILATERAL contract? o Certain as to TERMS? o A DIVISIBLE contract (UCC)? o A PRODUCTION or REQUIREMENTS contract (UCC)? o Is timely performance an express condition or mere covenant? o Is personal satisfaction an express condition or is there just a promise to render reasonably satisfactory performance (an implied condition of every contract)? Supported by CONSIDERATION? [Omit if not an issue; watch for MODIFICATION and ILLUSORY PROMISE problems.] Was the contract for a LEGAL PURPOSE? [Omit if not an issue.] Between parties with LEGAL CAPACITY? [Omit if not an issue; watch for MINORS.] 2. TERMS DISPUTES These raise the question, "What were the terms of the contract?" If FORMATION is in doubt, then the TERMS are probably in dispute as well. Look at the total communication and course of dealing between the parties and address these issues: Was the agreement sufficiently CERTAIN that a court can enforce it? o Remember for UCC only the quantity and parties must be certain.

5 o Otherwise, were the subject matter, time, price, quantity and parties certain? Was there a MODIFICATION that was ineffective because unsupported by consideration? Remember this does not apply to a UCC question! Does the PAROLE EVIDENCE RULE exclude extrinsic evidence? (Remember the mnemonic DAM FOIL!) 3. ANTICIPATORY BREACH QUESTIONS These raise the question, "Who breached first?" Most contract questions involve some allegation of a breach. There are two kinds of breaches, either breaches in fact or anticipatory repudiation. A breach in fact means a party did not perform at the time they were supposed to perform. An anticipatory repudiation means that a party clearly states an intent or inability to perform at some time in the future. For anticipatory breach questions look at each communication between the parties oneby-one until you find the first clear breach. Remember, only one party can breach a contract at a time. Once the first party breaches, the other party CANNOT breach unless the contract is "reformed" by waiver or an accord of a good faith dispute. Was there an ANTICIPATORY REPUDIATION -- a clear statement of intent not to perform a future obligation? Was there a WAIVER of the anticipatory breach? Was there an ACCORD AND SATISFACTION of a good faith dispute? Was timely performance an express condition or mere covenant? Was personal satisfaction an express condition or is there just a promise to render reasonably satisfactory performance (an implied condition of every contract)? 4. DEFENSE QUESTIONS These raise the following issues: Does the STATUTE OF FRAUDS (or UCC in the case of a sale of goods) require a writing? o Was the need for a writing satisfied? Did the contract (or modification if not a UCC question) lack CONSIDERATION? Was the contract for an ILLEGAL purpose (or unconscionable/adhesion contract)? Was the contract voidable by a MINOR or other party lacking capacity? Was the contract void because it was the product of FRAUD or DURESS? Was the contract void because of mutual MISTAKE (a la Peerless)? Was the contract void because performance was IMPOSSIBLE or FRUSTRATION OF PURPOSE? 5. THIRD PARTY QUESTIONS These raise the question, "Who has the right to enforce?" Were there THIRD PARTY BENEFICIARIES? SALES ISSUES 3

6 Was there a VALID ASSIGNMENT? Was there a VALID DELEGATION? 6. REMEDY QUESTIONS These raise the question, "What remedy does each party have?" Does a party get time to CURE (UCC)? What are the UCC remedies (COVER, REJECT, etc.)? Did the non-breaching party FAIL TO MITIGATE damages? Was there SUBSTANTIAL PERFORMANCE (a MINOR breach) or a MAJOR breach? Can a party obtain SPECIFIC PERFORMANCE? Can the non breaching party get CONSEQUENTIAL DAMAGES (LOST PROFITS)? o Cite Hadley v. Baxendale. o Remember the mnemonic CCCC. o Were lost profits Contemplated by the parties at time of execution? o Were lost profits Caused by the breach? o Were lost profits Certain as to amount? o Was the lost profit something that Couldn't be avoided. Do the SAVING DOCTRINES of the unilateral contract apply? If there is NO VALID ENFORCEABLE CONTRACT can the parties obtain EQUITABLE relief? Can promises be enforced based on ESTOPPEL?

7 Ch. 3: Sales Issues The most common issues bar examinees will be presented with include the following: 1. Does the UCC govern? [ALWAYS issue #1 if the UCC governs!] Under contract law the UCC controls contracts for the sale of GOODS. Goods are all things that are movable and identified to the contract at formation. Otherwise the common law controls. Important! Here the contract involved a sale because Tom offered to "sell his boat". And this was a contract for movable property because "boats" can be moved. Therefore, this was a contract for a sale of goods and the UCC determines the rights and remedies of the parties. [Memorize this rule and do it right. In a UCC answer this is always the first issue and the first thing the Reader will see. Make a good "first impression" and the Reader will be on your side from the beginning. Note that contracts covered by the UCC almost always call for the thing being sold to be 'delivered.' So if a contract is for the sale of some imaginary thing like "widgets" or "snuffledruggles" you should always be able to say, "This was a contract for the sale of moveable things because they were to be 'delivered'."] 1. Are the parties MERCHANTS? [Issue #2 in EVERY UCC question!] Under the UCC a MERCHANT is a person who trades in or otherwise holds himself out by occupation as knowledgeable about trade in the goods of the contract. Important! Further, anyone represented by an agent who by occupation is knowledgeable about trade in the goods in the contract will be treated as a merchant. [Don't be afraid to be a little conclusionary here. How do you know "Buyco and Sellco" trade in goods? At worst say it is, "implied by the fact they buy and sell thousands of widgets." How do you know that an art collector holds himself out by occupation as knowledgeable? Say it is "implied by the fact he is an art collector."] 2. Need for a WRITING? [Always Issue #3 in a UCC question!] Under UCC 2-201, a contract for sale of goods worth $500 or more must be evidenced by sufficient writing to prove a contract formed that is signed by (or attributable by SALES ISSUES 5

8 markings to) the party against whom the contract is to be enforced. But between merchants a SALES CONFIRMATION by one party that lists quantity will bind both of the parties if the receiving party does not object within 10 days. Furthermore, under the UCC no writing is necessary if 1) the contract is for special made goods, 2) the party to be bound admits a contract exists (in pleadings, deposition, or in court) or 3) to the extent there has been partial performance of the contract (acceptance of goods or payment). Important! 3. OFFER? [Only for a formation question.] Under contract law an OFFER is a manifestation of present contractual intent communicated to the offeree sufficiently certain as to terms that that an objective person would reasonably believe assent would form a bargain. Under the UCC an offer is sufficiently certain if it specifies the parties and quantity, and UCC "GAP FILLERS" may be used to determine additional terms. Important! [A communication is an offer if an objective observer would be reasonable in concluding a statement of "Ok!" by the offeree would immediately form a bargain. Suppose Bevis says, "Come back tomorrow and I will sell you my house for $100,000" and Butthead says, "Ok!" Did they just form a contract? No, because an objective observer would only conclude that Butthead was agreeing to come back the next day expecting Bevis to sell him the house at that time, not that he was agreeing to buy the house at the present time.] 4. ACCEPTANCE? [Only for a formation question.] Under UCC an acceptance of an offer not otherwise conditioned may be made in any reasonable manner,, including a promise to ship or shipment of either conforming or non-conforming goods. BUT a shipment of non-conforming goods as an express accommodation is not an acceptance. 6. ACCEPTANCE WITH VARYING TERMS? Under UCC allows an acceptance containing varying terms to be effective. Varying terms will NOT be included in the contract where: 1. the offer expressly limited acceptance and the offeror does not agree to the new terms, OR

9 2. the parties are not both merchants, OR if they are both merchants - 3. the varying terms materially alter the contract OR if not a material alteration - 4. the party to be bound expressly and timely objects in writing to the change in contract term. [Note: Whether an offeree has 1) rejected an offer and countered with a new offer or 2) accepted with varying terms per UCC depends on the precise language they use. Be careful to distinguish the use of the words "will" and "would" from the words "can" and "could." For example, if the offeree says they, "can (or could) ship, but without a warranty," it is a rejection and counteroffer. But if they say they "will (or would) ship, but without a warranty," it is an acceptance with a varying term is governed by UCC In a formation-type question if there is a contract formed, it MUST be discovered in the analysis of an acceptance that is the only place the contract can be formed. So as soon as a contract forms, it is often useful to analyze its terms as the next issue.] 7. CONTRACT TERMS? [In formation questions this is often a good issue to address immediately after a contract forms, especially if the parties are arguing over terms.] Under the UCC a contract is enforceable if the quantity and parties are specified. Other terms will be provided by the GAP FILLER provisions of the UCC which use the past course of conduct of the parties and industry standards to determine missing terms. Further, no statement of quantity is needed for a REQUIREMENTS contract under which the seller will sell, and the buyer will buy, all of the goods needed by the buyer. And no statement of quantity is needed for an OUTPUT contract under which the seller will sell, and the buyer will buy, all of the goods the seller can produce. 8. BREACH by failing to provide REASONABLE ASSURANCES? Under the UCC a party who has reasonable basis to believe the other party will not perform at a future date may demand reasonable assurances and refuse to perform until they are provided. Reasonable assurances means a financial guarantee or payment into escrow usually. 9. BREACH? SALES ISSUES 7

10 Under the PERFECT TENDER RULE of the UCC any non-conforming shipment of goods is a breach of contract. [Note that the UCC treats all breaches the same; there are no "major" or "minor" breaches. Usually only one party can breach a contract -- the first one to either anticipatorily repudiate or fail to perform when performance is due. Once a party actually breaches any subsequent performance failures or refusals by the other party are merely part of the dispute over the consequences of the first breach.] 10. DIVISIBLE CONTRACT? Under the UCC a DIVISIBLE contract is one under which goods are to be delivered in separate shipments that can each be evaluated separately. A breach with respect to one shipment of a divisible contract is just a breach as to that shipment and not a breach of the entire contract. 11. LACK OF CONSIDERATION? Under contract law every valid contract must be supported by CONSIDERATION, a bargained for exchange of value posing sufficient legal detriment that the law will enforce the agreement. However, under the UCC a contract supported by legal consideration may be MODIFIED without additional consideration. Important! [Lack of consideration at the time a UCC contract forms is almost never a real issue because it is always an exchange of money for goods. So lack of consideration is usually only an issue as to modifications of UCC contracts.] 12. REMEDY of NON-BREACHING BUYER? Under the PERFECT TENDER RULE of the UCC a non-breaching buyer can either accept or reject a non-conforming shipment of goods. Also they can repudiate the contract and cover, or they can affirm the contract and demand conforming goods. The measure of damages is the excess of market price or cover price over the contract price. If the goods are unique, they can plea for specific performance to force the seller to transfer possession and title, but that is up to the discretion of the Court and there is never a "right" to specific performance.

11 13. REMEDY of the NON-BREACHING SELLER? Under the UCC a non-breaching seller has the following remedies: A) The seller can sell the item at a salvage sale following notice to the breaching buyer and demand a money judgment for the excess of the contract price over the salvage price; B) The seller can demand a money judgment for the total contract price if the goods were special made and can not be sold at salvage or elsewhere; or C) In a LOST-VOLUME SITUATION, where the seller cannot immediately sell the goods to another buyer the seller can demand his lost profit, the excess of the contract price over cost. [A lost volume situation involves goods like an auto. The seller will eventually sell it to someone else but can just sue for the profits he would have made from the sale to the defendant (who repudiates the agreement) and keep the auto for sale to some other customer later.] 14. REMEDY of the BREACHING BUYER Under the UCC a breaching buyer may seek return of amounts paid the non-breaching seller in excess of the seller s damages. [Same rule as common law.] 15. REMEDY of the BREACHING SELLER? Under the UCC a breaching seller that delivers a non-conforming shipment that states an intention to cure has a right to cure at any time within the contract period and additional reasonable time after the contract period if the non-conforming shipment was shipped with a reasonable belief it would satisfy the needs of the buyer. SALES ISSUES 9

12 Ch. 4: Spotting Sales Issues Issue Area and Coded Hint: FORMATION ISSUES: Intended Issue: 1. Silent shipment : Acceptance by shipment 2. Fax communication: Sufficient UCC writing? 3. Acceptance with different terms: Acceptance under UCC rule? 4. Shipped wrong product: Acceptance by shipment of non-conforming goods? 5. Sales confirmation: Sufficient UCC writing? Merchant? 6. Firm offer: UCC implicated? INTERPRETATION OF TERMS: 7. Hobby/enthusiast/fan: Is he a merchant? 8. Prior dealings: Course of dealing? Past practices? 9. Acceptance with varying terms: Are the terms included in the contract? 10. Only bought, never sold goods: Is he a merchant? MODIFICATION ISSUES: 11. Modification or later agreement: UCC modification by consent? BREACH ISSUES: 12. Performance doubts, insolvency: Anticipatory Breach? 13. Assurances: UCC Reasonable Assurances? 14. Multiple shipments: Divisible UCC contract? DEFENSES: 15. Quantities and prices are given: Is it over $500? Does require writing? 16. Contract modification increases amount: 17. Custom made goods: Exception to 2-201? Is contract pushed over $500? require writing? 18. Contract admitted: Exception to 2-201? Admitted in legal setting? 19. Some product delivered and accepted: Exception to 2-201? Part performance?

13 REMEDY ISSUES: 20. Seller shipped wrong product: Buyer's remedies? Cover? Reject? Keep? 21. Shipment of non-conforming goods: Accommodation? Time to cure? 22. Rejected goods still at buyers: Sell at salvage after notice? AN ISSUE SPOTTING EXAMPLE: Example 1: "Al ordered 10,000 campaign buttons by telephone from Sellco that said "Al for President." The purchase price was $.10 each, and Sellco said that if Al cancelled the order he would have to forfeit his deposit of $500. Sellco ordered the buttons to be manufactured by Manco. The next day the Secretary of State told Al he would not be on the ballot because he failed to meet a filing deadline. Al immediately tried to cancel the order, but Sellco refused to accept or return his phone calls. Two weeks later Manco delivered the campaign buttons and billed Sellco. Sellco is demanding an additional $500. Al wants his $500 deposit back. Discuss." Issues: 1) WHAT LAW? UCC because this is sale of movable goods -- buttons -- and we know they are moveable because they were "delivered.". 2) MERCHANTS? Sellco is because they "deal" in the goods. Al is not because he is buying for personal use and no evidence shows him "knowledgeable". 2) NEED FOR WRITING? No. Phone contract and it is over $500, but CUSTOM MADE goods is an exception to UCC 2-201! 3) FRUSTRATION OF PURPOSE. Purpose of contract is political campaign and all parties knew it. That makes the feasibility of Al's continued candidacy an implied material condition of the contract. If the condition fails, the contract terminates. 4) LIQUIDATED DAMAGES clause is excessive. Cannot be enforced. 5) FAILURE TO MITIGATE. Sellco had a duty to cancel the Manco order and did not do so. They lose. Al gets all $500 back probably. SALES ISSUES 11

14 Ch. 5: Sales Rules and Definitions 1. ACCEPTANCE (UCC): Under UCC an acceptance to an offer not other wise conditioned may be made in any REASONABLE MANNER, including a promise to ship or shipment of either conforming or non-conforming goods, but a shipment of NON-CONFORMING goods as an EXPRESS ACCOMMODATION is not an acceptance. UCC allows an acceptance containing varying terms to be effective. 2. ACCORD AND SATISFACTION (UCC ): An ACCORD AND SATISFACTION is a binding agreement settling a reasonable, good faith dispute over the terms and/or performance of a contract. Further, under UCC the good faith tender and acceptance of an instrument as full satisfaction of any claim that is unliquidated or the subject of a bona fide dispute is generally binding, subject to certain statutory limitations and exceptions. 3. CONSIDERATION (UCC): Under the UCC consideration is required to establish a contract, but additional consideration is not required to support the modification of the previously existing agreement. 4. CURE (UCC): Under the UCC a breaching seller has a right to cure a delivery of non-conforming goods if the seller 1) promptly notifies the buyer of the intent to cure and either 2) cures the breach by delivery of conforming goods within the contract period or 3) cures a delivery of non-conforming goods that were shipped with a reasonable belief they were suitable for the buyer's needs, within a reasonable time beyond the contract period. 5. DIVISIBLE CONTRACT (UCC): Under the UCC a divisible contract is one that schedules more than one shipment of goods in a manner that payment can be made for individual shipments. A shipment of non-conforming goods is a partial breach, but the buyer cannot repudiate the contract with respect to subsequent scheduled shipments. 6. GOODS (UCC): Under the UCC anything movable and identifiable to a contract at the time of formation. A sale of standing crops and timber attached to the land are also goods even though they are not "moveable" at the time of sale. A sale of minerals to be extracted from the land are only goods if they are to be extracted by the seller. Personal property rights like copyrights are not goods, and neither are contracts for services, stocks, bonds, or currency. 7. MERCHANT (UCC): A person who trades in or otherwise holds himself out as knowledgeable about the goods of the contract. Can be a hobbyist or regular purchaser of goods. 8. MERCHANT'S FIRM OFFER (UCC): Under UCC a merchant's offer to sell goods that expressly states in writing that the offer is irrevocable for any period of time is irrevocable for the time stated, not to exceed 3 months, or if no time is stated for a reasonable period of time given the circumstances, not exceeding 3 months, without the need for consideration. If a merchant's firm offer is on a printed form supplied by the offeree the statement that the offer is irrevocable must be separately signed by the offeror. A merchant's firm offer does

15 not automatically lapse before the time stated or for a reasonable period of time if no time is stated. 9. OFFER (UCC): Under the UCC an offer need only specify the parties and quantity as UCC "gap fillers" may be used to determine additional terms based on the past course of dealing between the parties and industry norms.. Further, the UCC does not require quantity to be stated for REQUIREMENTS and OUTPUT contracts (which see.) 10. OUTPUT CONTRACTS (UCC): An output contract is an agreement that a buyer will buy all amounts produced by the seller. The quantity is defined by the reasonable expectations of the parties. [Note: This must be an agreement that the seller will sell ALL of his output to the buyer and not just that he can sell all the output he "wants" to sell to the buyer or else the seller is not bound to anything and the contract becomes illusory.] 11. PERFECT TENDER RULE (UCC): Under the UCC a seller of goods must meet the offer terms exactly. If goods deviate from the offer terms in any manner they are non-conforming goods and the buyer can reject them and demand conforming goods. 12. REASONABLE ASSURANCES (UCC): Under the UCC a contract party that has reasonable doubts about the other party's ability or willingness to perform under a contract may demand reasonable assurances of payment in the form of a financial guarantee or payment to escrow. 13. REMEDY OF BREACHING BUYER (UCC): Under the UCC the breaching buyer can demand return of deposits or payments in excess of the non-breaching seller's damages. 14. REMEDY OF BREACHING SELLER (UCC): Under the UCC the breaching seller, upon giving notice to the buyer, has a right to cure within the contract period and has a right to extra reasonable time to cure beyond the contract period if a non-conforming shipment was sent with a reasonable belief it was suitable for the buyer's needs. 15. REMEDY OF NON-BREACHING BUYER (UCC): A non-breaching buyer may request SPECIFIC PERFORMANCE to obtain possession and title to unique goods such as antiques. Otherwise, the non-breaching party may accept or reject non-conforming goods, repudiate the contract, cover by purchasing conforming goods or demand conforming goods. 16. REMEDY OF NON-BREACHING SELLER (UCC): A non-breaching seller may 1. Demand payment of the contract price (specific performance) if the goods are custom made and unsuitable for resale, 2. Demand payment of the excess of contract price over the market price if the goods can be resold, 3. Sell the goods at salvage after notice and demand the excess of the contract price over salvage price, or 4. Demand lost profits if the goods cause a lost volume situation. 17. REQUIREMENTS CONTRACTS (UCC): A requirements contract is an agreement that a buyer will buy all amounts needed from a seller. The quantity is defined by the reasonable expectations of the parties. [Note: This is NOT an SALES ISSUES 13

16 agreement that the buyer can buy "all he wants" or "all he orders". It MUST be an agreement the buyer will buy all he NEEDS because otherwise the buyer is not being bound to anything at all and the whole contract becomes illusory.] 18. UCC (UCC): A contract for goods worth $500 or more must be evidenced by sufficient written evidence to show a contract formed, signed by (or otherwise bearing markings identifiable to) the party against whom the contract is to be enforced. But between MERCHANTS a sales confirmation by one listing quantity will bind both parties if the receiving party does not object within 10 days. The rule does not apply to 1) special made goods, 2) if the party to be bound admits the existence of the contract (in pleadings, in deposition or in court), or 3) to the extent there has been partial performance by acceptance of payment or goods. 19. UCC (UCC): A firm offer in a signed writing by a merchant that by its terms assures it will not be revoked is irrevocable for the stated time, or if no time is stated for a reasonable time given the circumstances, without the need for consideration, but can be revoked after three months in any event. 20. UCC (UCC): An acceptance may be made in any reasonable manner, including a promise to ship or shipment of either conforming or non-conforming goods, but a shipment of non-conforming goods as an express accommodation is not an acceptance. 21. UCC (UCC): An acceptance containing varying terms is an effective acceptance, but the varying terms will NOT be included in the contract if 1) the offer expressly limited acceptance and the offeror does not agree to the new terms, OR 2) the parties are not both merchants, OR 3) if they are both merchants the varying terms materially alter the contract OR 4) if not a material alteration the party to be bound expressly and timely objects in writing to the change in contract terms.

17 Ch. 6: UCC Sections to Remember We suggest you memorize four sections that all start with "2-20". These are sections 2-201, 2-205, and All you have to remember is 1 followed by These sections are: 1. UCC (UCC): A contract for goods worth $500 or more must be evidenced by a sufficient writing to prove a contract formed and signed by (or otherwise marked in a way that shows it came from) the party against whom the contract is to be enforced. But between merchants a sales confirmation by one listing quantity will bind both parties if the receiving party does not object within 10 days. Further, the rule does not apply to 1) special made goods, 2) where there is an admission by the party to be bound in a legal setting (like pleadings, a deposition, or in court) that a contract existed, or 3) where there has been partial performance of the contract to the extent there was acceptance of payment or goods. 2. UCC (UCC): An offer by a merchant in a signed writing that assures it will be held open for some period of time is irrevocable creates without consideration for the stated time, or if no time is stated for a reasonable time, but not for over three months regardless of the time stated. 3. UCC (UCC): Unless the offer clearly demands otherwise, an acceptance may be made in any reasonable manner, including a promise to ship or shipment of either conforming or non-conforming goods, but a shipment of non-conforming goods as an express accommodation is not an acceptance. 4. UCC (UCC): An acceptance containing varying terms is an effective acceptance, but the varying terms will NOT be included in the contract where 1) the offer expressly limited acceptance and the offeror does not agree to the new terms, OR 2) the parties are not both merchants, OR 3) if they are both merchants the varying terms materially alter the contract OR 4) if not a material alteration the party to be bound expressly and timely objects in writing to the change in contract terms. SALES ISSUES 15

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