Legal Memorandum: Contract Confirmation Additional Terms

Issue: Under Massachusetts law, does a liability limitations clause become part of a contract so long as notice of the restrictions were received before the contracting party received performance?

Mass. Gen. Laws ch. 106, § 2-207 governs the issue of conflicting contract terms.  It states:

(1)        A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

(2)        The additional or different terms are to be construed as proposals for addition to the contract.  Between merchants such terms become part of the contract unless:

(a)        the offer expressly limits acceptance to the terms of the offer;

(b)        they materially alter it; or

(c)        notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

(3)        Conduct by both parties which recognizes the existence of […]

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