## Facts

- Auburn Plastics, Inc. submitted detailed written price quotations (“proposals”) to CBS, Inc. in September 1973 for manufacturing eight-cavity plastic injection molds to make toy parts.
- Each proposal stated it was not binding unless accepted within 15 days (except at Auburn’s option) and stated that conditions on the reverse side were part of the proposal and “all subsequent orders.”
- A reverse-side condition required CBS, in return for Auburn’s design/engineering services, to pay an additional 30% above the quoted mold price when CBS demanded delivery of the molds (described as an engineering or mold-acquisition charge).
- CBS did not accept the proposals within the stated 15-day period.
- Months later, CBS sent Auburn purchase orders for the molds that did not include the 30% engineering/mold-acquisition charge.
- CBS’s purchase orders stated that acceptance was limited to the terms and conditions of the purchase orders and that any additional or different terms required CBS’s written assent; they also reserved CBS’s right to remove the molds without a withdrawal or acquisition charge.
- Auburn returned acknowledgments of CBS’s purchase orders that referred back to Auburn’s earlier proposals and attempted to incorporate the proposal terms, including the 30% charge.
- Auburn’s acknowledgments did not state that Auburn’s acceptance was expressly conditional on CBS’s assent to the additional 30% term.
- Auburn manufactured the molds; CBS paid the amounts reflected on its purchase orders and used the molds in production.
- After Auburn later increased prices for molded parts, CBS demanded delivery of the molds for use elsewhere; Auburn refused to surrender them unless CBS paid the additional 30% charge.
- CBS sued for relief including possession/delivery of the molds and a determination that the 30% charge was not part of the contract; the trial court ruled for CBS, and Auburn appealed.

## Issues

1. Under U.C.C. § 2-207, did Auburn’s 30% engineering/mold-acquisition charge—added in Auburn’s acknowledgments—become a term of the parties’ contract where CBS’s purchase orders omitted the charge and limited acceptance to their own terms, and Auburn’s acceptance was not expressly conditional on CBS’s assent?
2. Did Auburn’s earlier price quotations control as the offer, or had they lapsed such that CBS’s later purchase orders were the operative offers?

## Decision

- The Appellate Division, Fourth Department, unanimously affirmed the trial court’s order, with costs.
- The court treated Auburn’s proposals as not binding because they were not accepted within the stated 15-day period; CBS’s later purchase orders functioned as the operative offers.
- Auburn’s acknowledgments were “definite and seasonable” acceptances under U.C.C. § 2-207(1) because they were not expressly made conditional on CBS’s assent to the additional 30% term.
- The 30% engineering/mold-acquisition charge did not become part of the contract under U.C.C. § 2-207(2), including because CBS’s purchase orders expressly limited acceptance to their terms.
- The added 30% charge was also treated as a material change in the bargain and was not included absent CBS’s express assent.
- Auburn therefore could not condition delivery of the molds on payment of the 30% charge.

## Legal Principles

- A price quotation, if sufficiently detailed, can constitute an offer, but it may lapse or be nonbinding by its own stated terms if not timely accepted.
- Under U.C.C. § 2-207(1), a writing operating as a definite and seasonable expression of acceptance forms a contract even if it states additional or different terms, unless the acceptance is expressly made conditional on assent to those terms.
- Under U.C.C. § 2-207(2), between merchants, additional terms in an acceptance become part of the contract unless (a) the offer expressly limits acceptance to its terms, (b) the additional term would materially change the bargain, or (c) the offeror objects within a reasonable time.
- A buyer’s purchase order that states acceptance is limited to its stated terms prevents a seller’s added terms from becoming part of the contract without the buyer’s written assent.
- A substantial added charge (such as an additional 30% engineering/mold-acquisition fee imposed at delivery) is the type of term a buyer would not reasonably expect to be imposed through an acknowledgment alone and may be excluded as a material change absent express agreement.

## Conclusion

Because Auburn’s time-limited proposals were not accepted as written, CBS’s later purchase orders controlled as the offers; Auburn’s acknowledgments were acceptances under U.C.C. § 2-207(1) but did not add the 30% engineering/mold-acquisition charge to the contract under § 2-207(2), so Auburn could not withhold the molds unless CBS paid that extra amount.


CBS, Inc. v. Auburn Plastics, Inc., 67 A.D.2d 811 (1979)