Under UCC, the presence of additional or different terms does not make the response a counteroffer. So, Hunger and Hardie-Tynes do enter into a contract. The terms were “Battle of the Forms” which parties negotiate essential terms (quantity, quality, delivery date) but not over secondary issues. In Hunger United States Special Hydraulic Cylinders Corp. v. Hardie-Tynes Manufacturing Co., 41 U.C.C. Rep. Serv. 2d 165 (10th Cir. 2000), because both parties are merchants, the terms become part of the contract, unless 1) offer expressly limits acceptance to the terms; 2) new terms materially alter the original offer; 3) the party making the original offer objects to the new terms.
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QCPs: 8.4 Under Section 2-615, failure to perform is not breach if performance is impracticable by event unforeseen by the contract. In Aquila, Inc. v. C.W. Mining, 545 F.3d 1258 (10th Cir. 2008), the contract contained a force majeure clause, which mean any and all causes beyond the reasonable control of the party failing to perform, including but not limited to labor disputes. In order for C.W. to apply the …show more content…
[1] In addition, the courts further “rejected CWM's alternative theory that the geological difficulties themselves qualified as force majeure events because Aquila had actual notice of them that substituted for the written notice required under the contract; instead, the court found that Aquila never received adequate notice”. [1] Consequently, the buyer, Aqulia in this case, should receive remedies. Aqulia has reasonably mitigated the damages by accepting the coal that C.W. was able to deliver, and purchased the reminder on the spot market as well as entered into a long-term contract with Consolidated Coal under less favorable terms. Therefore, C.W. should reimbursed any extra cost caused for