The Limits of Limiting Liability in the Battle of the Forms: U.C.C. Section 2-207 and the "Material Alteration" Inquiry

Abstract

This article will describe the varying approaches that courts use to decide whether clauses limiting liability materially alter the contract under U.C.C. section 2-207. In Part II, the article reviews the development of U.C.C. section 2-207, beginning with its common law roots, and its interaction with the section limiting liability. In Part III, the three principal approaches used by the courts, the per se material alteration approach, the per se not material alteration approach and the "surprise or hardship" approach are discussed and analyzed. Ultimately, this article concludes that the "surprise or hardship" model is the approach most consistent with the dictates of the revised section 2-207. Finally, Part IV reflects upon what effect the revisions to Article 2 will have on these approaches.