Uniform Law Sources: Common law decisions; Restatement (Second) of Contracts 211.

"Agreement". Section 1-201. "Conspicuous". Section 2B-102. "Contract". Section 2B-102. "Opportunity to review." Section 2B-112. "Manifest assent." Section 2B-111 "Party". Section 1-201. "Record". Section 2B-102. "Standard form". Section 2B-102. "Term". Section 1-201.

a. Rejected a motion to add retention of benefits as manifesting assent.

1. General Structure: Terms of Contract. This Section deals with adoption by a party of the terms of a record, including a standard form, in non-mass-market transactions.

Article 2B deals with the terms of a contract, records that document those terms, and with standard forms in three sections. Section 2B-207 and 2B-208 deal with "single form" or single record cases. Section 2B-209 deals with cases where records are exchanged that do not create a contract on their face, but a contract nevertheless exists because conduct of both parties indicates agreement.

These three sections do not address formation issues. If no contract is formed under other rule in this Article, the sections are inapplicable. What these sections address is: given a contract, what are the terms? The distinction between formation and term delineation concepts is modeled after the Restatement (Second) of Contracts. Of course, however, in many situations, the actions that adopt a record also reflect the formation of an agreement.

2. Adopting Terms: Enforceability. Subsection (b) states the simple principle that when a party agrees or assents to a record, whether a standard form or not, this act adopts the terms of the record as part of the contract. This does not alter traditional UCC limitations on enforceability of terms, such as the doctrine of unconscionability.

The adoption of a record includes a standard forms. The effect is to reject in commercial deals the rule in some states that a term that is not unconscionable and was not induced by fraud or other active misconduct may still be excluded by a judge viewing the transaction in retrospect. This confirms an important aspect of commercial law and commercial practice expectations. The enforceability principle adopted here is followed in the vast majority of modern case law. It flows from the belief that in the absence of unconscionability or fraud or similar conduct, commercial parties are bound by the records to which they assent and cannot later claim surprise or a failure to read the language presented to them.

3. Adopting Terms: Knowledge. Adoption of the terms of a record does not require that the adopting party actually read, understand, or negotiate the terms. This reflects virtually universal law in the United States. In many situations, parties do not closely review or dicker about each term of a record. Subsection (b) recognizes that fact. Equally important, the Section provides that the defense that "I did not read" the contract does not enable a party to avoid the effect of the terms of a record it adopted.

4. Modes of Assent. A party is bound by a record only if it agrees to the record, by manifesting assent or otherwise. There are three general methods of establishing adoption of a record.

The definition of manifesting assent identifies two of these. One involves authenticating (signing) the record. This is a traditional means of adopting the terms of a record, but has never been the sole method of doing so. An authentication of a record often serves not only to adopt the terms of the record, but also to accept the contract offered by or through the record.

Authentication is one way of "manifesting assent." In the absence of an authentication, this Section follows common law and expressly recognizes that conduct can indicate assent to a record or a contract. This concept, as defined in Section 2B-111, focuses on objective manifestations of assent and adopts procedural safeguards requiring that the party to be bound by the standard form or other record have a fair an opportunity to review the terms before assenting and to reject the agreement if the terms are not acceptable. See Section 2B-112. A party cannot manifest assent to a form or other record unless it has had an opportunity to review that form before reacting. Except in contract modifications, an opportunity to review does not occur unless the party has a right to return the subject matter, refuse the contract, and obtain a refund of fees already paid (if any).

These two structured options are inadequate to cover the full range of situations in which it can be fairly said that a party agreed to a record. This Section accommodates the breadth and diversity that exits in modern practice by allowing a court to find that a record was adopted when or if a party agreed to that record. This general standard is more subjective and deals with the entire context.

5. Rolling or Layered Term Adoption. A basic theme in Article 2B is that, while some contracts are formed and their terms delineated at a single point in time, in many modern transactions a rolling or layering process occurs. An agreement exists and terms are provided, clarified or introduced over a period of time point. Contract formation and term definition is a process, rather than a single event. This theme was introduced in current Article 2; enacted in contract formation rules that acknowledge the creation of a contract even if terms are left open or to be specified in the future. It is amplified here

Subsection (a) implements that theme and rejects the idea that a contract and all of its terms must be formed at a single point in time. Case law adopts a more fluid conception of the process of contracting, where parties define the agreement over a period of time that is not constrained to an instantaneous "closing" in most cases. See, e.g., Carnival Cruise Lines, Inc. v. Shute, 111 S.Ct. 1522 (1991); Hill v. Gateway 2000, Inc., 1997 WL 2809 (7^th Cir. 1997). This rolling contract concept reflects that, in many agreements, terms are considered at two different points in time (some at the initial discussion and others when the products arrives), while in still others, terms may continue to be created and modified over time.

Terms can and often are created in modern commerce by assent after beginning performance. Thus, in the entertainment industry and in many development contracts, contract terms are developed and drafted while performance occurs, not before performance begins. Each party anticipates an enforceable record will be created and agreed to, but neither waits on performance until one is fully drafted. This section accommodates that process as well as the common practice of providing terms for assent at some point prior to the initial performance, even if not at the first step in the agreement process.