Master Missouri’s leading UCC § 2-207 “battle of the forms” case holding that a seller’s indemnity clause in an acknowledgment did not become part of the contract. with this comprehensive case brief.
Brown Machine v. Hercules is a staple in contracts courses for illustrating how UCC § 2-207 resolves the “battle of the forms” when merchants exchange purchase orders and acknowledgments containing mismatched boilerplate. The case squarely addresses whether a significant additional term—an indemnity clause—contained only in the seller’s acknowledgment becomes part of the parties’ contract. The court’s answer, grounded in the text and policy of § 2-207, underscores the protective architecture the UCC builds around offers that limit acceptance to their terms and around buyers who never expressly agree to major risk-shifting provisions.
Beyond its specific outcome, Brown Machine clarifies three teaching points: (1) how to identify the operative offer and acceptance in a merchant exchange; (2) what counts as an “additional term” and whether it materially alters the bargain; and (3) what “express assent” requires when the offeror limits acceptance. The opinion is frequently paired with other § 2-207 decisions to demonstrate how courts parse the statute’s subparts and to give students a structured method for analyzing conflicting forms on exams and in practice.
Brown Machine, Inc. v. Hercules, Inc., 770 S.W.2d 416 (Mo. Ct. App. 1989)
Brown Machine, Inc., a manufacturer of industrial equipment, negotiated to sell a trim press to Hercules, Inc., a commercial buyer. Hercules issued a purchase order that expressly limited acceptance to the terms stated in the purchase order and required any additional or different terms to be expressly agreed to in writing by Hercules. In response, Brown sent its acknowledgment form, which accepted the order but included on its reverse side additional terms and conditions not found in Hercules’s purchase order, including an indemnification clause obligating the buyer to indemnify and hold Brown harmless for claims arising from the use of the machine. Hercules did not sign or otherwise expressly assent to the acknowledgment’s indemnity clause. Brown delivered the machine, Hercules paid for it, and the parties performed. Later, a Hercules employee was injured while using the machine and asserted claims against Brown. Brown sought contractual indemnity from Hercules based on the indemnity provision contained in Brown’s acknowledgment and invoices. Hercules denied any indemnity obligation, contending that the clause never became part of the contract. Brown sued to enforce the indemnity. The trial court ruled that the indemnity clause was not part of the contract under UCC § 2-207, and Brown appealed.
Under UCC § 2-207, does a seller’s indemnity provision contained only in its acknowledgment form become part of a sales contract between merchants when the buyer’s purchase order limits acceptance to its terms and the buyer does not expressly assent to the additional term?
UCC § 2-207(1) provides that a definite and seasonable expression of acceptance operates as an acceptance even though it states additional or different terms, unless acceptance is expressly made conditional on assent to the additional or different terms. Under § 2-207(2), as between merchants, additional terms in an acceptance become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) the additional terms materially alter the contract; or (c) notification of objection to the additional terms has already been given or is given within a reasonable time. Material alterations are those that result in surprise or hardship if incorporated without express awareness by the other party; significant risk-shifting clauses, such as indemnity provisions, typically constitute material alterations. Where the offer limits acceptance to its terms, additional terms become part of the contract only if the offeror expressly assents to them; mere silence, performance, or general assent to proceed does not constitute the required express assent.
No. The indemnity clause did not become part of the parties’ contract. The buyer’s purchase order limited acceptance to its own terms, the indemnity provision was a material alteration, and there was no express assent by the buyer. Accordingly, the buyer had no contractual duty to indemnify the seller.
The court first identified Hercules’s purchase order as the offer. Brown’s acknowledgment was a definite and seasonable expression of acceptance and was not “expressly made conditional” on Hercules’s assent to Brown’s additional terms; therefore, a contract was formed under § 2-207(1) upon Brown’s acknowledgment, but only on the offer’s terms plus any additional terms that survive § 2-207(2). Turning to § 2-207(2), the court held that the indemnity clause was an “additional term.” Because both parties were merchants, the additional term could become part of the contract only if none of the three statutory disqualifiers applied. Two did. First, § 2-207(2)(a): Hercules’s purchase order expressly limited acceptance to its terms and required any different or additional terms to be expressly accepted in writing by Hercules. That limitation alone prevented Brown’s indemnity provision from becoming part of the agreement absent express assent. Second, § 2-207(2)(b): the indemnity provision was a material alteration. It shifted substantial risk and potential liability to the buyer that the buyer could not reasonably anticipate from a routine purchase of a machine. Such a clause would cause surprise or hardship if incorporated without express awareness, a hallmark of material alteration. The court then considered whether Hercules had “expressly assented” to the indemnity clause notwithstanding the statutory bars. It found no such assent. Hercules did not sign Brown’s acknowledgment or otherwise clearly and unequivocally agree to the indemnity term. Continued performance—accepting delivery and paying—was not enough; § 2-207 requires explicit assent to incorporate additional, material, or otherwise excluded terms when the offer limits acceptance. Nor was there any course of dealing or course of performance that could supply assent to such a risk-shifting provision. Because the indemnity clause never became part of the parties’ contract, Brown could not enforce it to shift the injury liability to Hercules.
Brown Machine is a leading illustration of UCC § 2-207’s operation in merchant exchanges. It teaches students to: (1) identify the offer and the acceptance; (2) check whether the acceptance is “expressly conditional”; (3) classify new language as additional or different terms; (4) apply § 2-207(2)’s three exceptions; and (5) demand true “express assent” before enforcing major risk-shifting clauses. The case is frequently cited for the proposition that indemnity, warranty disclaimers, and significant limitations of liability are material alterations that do not slip into a contract by silence or routine performance, especially when the offer explicitly limits acceptance to its terms.
The court treated Hercules’s purchase order as the offer because it set the definitive terms of the deal and invited acceptance. Brown’s acknowledgment was the acceptance because it confirmed the order and manifested assent to proceed. This sequencing is common when a buyer issues a purchase order and the seller responds with an acknowledgment containing boilerplate.
An acceptance is “expressly made conditional” only if it clearly states that no contract will form unless the offeror assents to the additional or different terms in the acceptance. General references to the seller’s standard terms or statements that the order is accepted “subject to” the seller’s terms are usually insufficient. In Brown Machine, the acknowledgment did not unmistakably condition formation on the buyer’s assent, so a contract formed under § 2-207(1) without incorporating the seller’s additional terms.
Indemnity shifts substantial risk and potential liability from the seller to the buyer. Courts view such clauses as causing surprise or hardship if included without the other party’s express awareness. Under § 2-207(2)(b), material alterations do not become part of the contract automatically between merchants; they require explicit agreement. The court characterized Brown’s indemnity term as exactly this kind of significant risk-shifting provision.
Express assent requires a clear, affirmative agreement to the specific additional term—such as a signed writing acknowledging and accepting the clause or an explicit written confirmation that references and accepts it. Mere silence, accepting delivery, paying, or saying “okay to proceed” does not meet the express assent requirement, especially for material alterations.
Possibly, but likely not for an indemnity clause. Without a limitation, additional terms between merchants may become part of the contract unless they materially alter it or the offeror timely objects. Because indemnity is a material alteration, it still would not become part of the contract absent express assent, even if the purchase order lacked a limitation-of-acceptance clause.
No. Section 2-207(3) fills gaps when writings do not form a contract but the parties’ conduct recognizes one. Here, a contract formed under § 2-207(1) without the indemnity term, so (3) did not supply the term. In any event, material risk-shifting terms are not implied by conduct alone; they require explicit agreement.
Brown Machine v. Hercules crystallizes the UCC’s treatment of clashing boilerplate by refusing to let significant risk-shifting provisions ride into a contract unnoticed. When a buyer’s purchase order limits acceptance and the seller’s acknowledgment adds a material term, § 2-207 blocks incorporation absent the buyer’s clear, express assent. The case thus protects reasonable expectations and reinforces the need for explicit agreement on major liabilities.
For students and practitioners, the case is a blueprint for analyzing § 2-207 problems: identify the offer and acceptance, test for “expressly conditional,” classify the added term, apply the § 2-207(2) exceptions, and demand explicit assent for material alterations. When drafting or negotiating, the lesson is equally practical: if you want an indemnity or a significant limitation of liability, don’t bury it in the fine print—get it expressly agreed to in writing.