41-02-13. (2-206) Offer and acceptance in formation of contract.
981 words·~4 min read·
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1. Unless otherwise unambiguously indicated by the language or circumstances:
a. An offer to make a contract shall be construed as inviting acceptance in any
manner and by any medium reasonable in the circumstances.
b. An order or other offer to buy goods for prompt or current shipment shall be
construed as inviting acceptance either by a prompt promise to ship or by the
prompt or current shipment of conforming or nonconforming goods but such a
shipment of nonconforming goods does not constitute an acceptance if the seller
seasonably notifies the buyer that the shipment is offered only as an
accommodation to the buyer.
2. If the beginning of a requested performance is a reasonable mode of acceptance, an
offeror who is not notified of acceptance within a reasonable time may treat the offer
as having lapsed before acceptance.
41-02-14. (2-207) Additional terms in acceptance or confirmation. 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 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 a contract is sufficient to
establish a contract for sale although the writings of the parties do not otherwise
establish a contract. In such case the terms of the particular contract consist of those
terms on which the writings of the parties agree, together with any supplementary
terms incorporated under any other provisions of this title.
41-02-15. (2-208) Course of performance or practical construction. Repealed by S.L. 2007, ch. 354, § 29.
41-02-16. (2-209) Modification, rescission, and waiver. 1. An agreement modifying a contract within this chapter needs no consideration to be
binding. 2. A signed agreement that excludes modification or rescission except by a signed writing
or other signed record cannot be otherwise modified or rescinded, but except as
between merchants such a requirement on a form supplied by the merchant must be
separately signed by the other party. 3. The requirements of the statute of frauds section of this chapter (section 41-02-08)
must be satisfied if the contract as modified is within its provisions. 4. Although an attempt at modification or rescission does not satisfy the requirements of
subsection 2 or 3, it can operate as a waiver. 5. A party who has made a waiver affecting an executory portion of the contract may
retract the waiver by reasonable notification received by the other party that strict
performance will be required of any term waived, unless the retraction would be unjust
in view of a material change of position in reliance on the waiver.
41-02-17. (2-210) Delegation of performance - Assignment of rights. 1. A party may perform that party's duty through a delegate unless otherwise agreed or
unless the other party has a substantial interest in having the other party's original
promisor perform or control the acts required by the contract. No delegation of
performance relieves the party delegating of any duty to perform or any liability for
breach. 2. Except as otherwise provided in section 41-09-68, unless otherwise agreed, all rights
of either seller or buyer can be assigned except when the assignment would materially
change the duty of the other party, or increase materially the burden or risk imposed
on the other party by that party's contract, or impair materially that party's chance of
obtaining return performance. A right to damages for breach of the whole contract or a
right arising out of the assignor's due performance of the assignor's entire obligation
can be assigned despite agreement otherwise. 3. The creation, attachment, perfection, or enforcement of a security interest in the
seller's interest under a contract is not a transfer that materially changes the duty of or
increases materially the burden or risk imposed on the buyer or impairs materially the
buyer's chance of obtaining return performance within the purview of subsection 2
unless, and then only to the extent that, enforcement actually results in a delegation of
material performance of the seller. Even in that event, the creation, attachment,
perfection, and enforcement of the security interest remain effective, but:
a. The seller is liable to the buyer for damages caused by the delegation to the
extent that the damages could not reasonably be prevented by the buyer; and
b. A court having jurisdiction may grant other appropriate relief, including
cancellation of the contract for sale or an injunction against enforcement of the
security interest or consummation of the enforcement.
4. Unless the circumstances indicate the contrary, a prohibition of assignment of the
contract is to be construed as barring only the delegation to the assignee of the
assignor's performance.
5. An assignment of the contract or of all my rights under the contract or an assignment
in similar general terms is an assignment of rights and unless the language or the
circumstances (as in an assignment for security) indicate the contrary, it is a delegation
of performance of the duties of the assignor and its acceptance by the assignee
constitutes a promise by the assignee to perform those duties. This promise is
enforceable by either the assignor or the other party to the original contract.
6. The other party may treat any assignment which delegates performance as creating
reasonable grounds for insecurity and may without prejudice to that party's rights
against the assignor demand assurances from the assignee (section 41-02-72).