Commerce & Industry Insurance Company v. Bayer Corporation

Facts

P1 manufactures internationally-known apparel fabrics and other textiles. An explosion and fire destroyed several P1's buildings at its manufacturing facility. P1 and its insurers, Commerce and Industry Insurance Company and Federal Insurance Company (P) sued numerous defendants, including D. The alleged cause of the fire was the ignition, by static electrical discharge, of nylon tow (also known as bulk nylon fiber), which was sold by D (but manufactured by a French business entity) to P1. P1 initiated purchases of nylon tow from D either by sending its standard form purchase order to D or by placing a telephone order to D, followed by a standard form purchase order. Each of P1's purchase orders contained, on the reverse side, as one of its 'terms and conditions,' an arbitration provision stating: 'Any controversy arising out of or relating to this contract shall be settled by arbitration in the City of New York or Boston as P1 shall determine in accordance with the Rules then obtaining of the American Arbitration Association or the General Arbitration Council of the Textile Industry, as P1shall determine.' Another 'term and condition' appearing in paragraph one on the reverse side of each purchase order provides: 'This purchase order represents the entire agreement between both parties, notwithstanding any Seller's order form, whether sent before or after the sending of this purchase order, and this document cannot be modified except in writing and signed by an authorized representative of the buyer.' D filled the orders and sent an invoice with each shipment. On its face, located at the bottom of the form in capital letters:

'TERMS AND CONDITIONS: NOTWITHSTANDING ANY CONTRARY OR INCONSISTENT CONDITIONS THAT MAY BE EMBODIED IN YOUR PURCHASE ORDER, YOUR ORDER IS ACCEPTED SUBJECT TO THE PRICES, TERMS AND CONDITIONS OF THE MUTUALLY EXECUTED CONTRACT BETWEEN US, OR, IF NO SUCH CONTRACT EXISTS, YOUR ORDER IS ACCEPTED SUBJECT TO OUR REGULAR SCHEDULED PRICE AND TERMS IN EFFECT AT TIME OF SHIPMENT AND SUBJECT TO THE TERMS AND CONDITIONS PRINTED ON THE REVERSE SIDE HEREOF.' 

The following 'condition' appears in paragraph fourteen on the reverse side of each invoice:

'This document is not an Expression of Acceptance or a Confirmation document as contemplated in Section 2-207 of the Uniform Commercial Code. The acceptance of any order entered by P1 is expressly conditioned on P1's assent to any additional or conflicting terms contained herein.' 

P1 paid its bills to D within thirty days of receiving an invoice. D demanded that P1 arbitrate its claims against D. The judge concluded that subsection (3) of § 2-207 governed, and, pursuant thereto, the arbitration provision was not enforceable because the parties had not agreed in their writings to arbitrate. The judge rejected D's argument that Ps should be equitably estopped from refusing to proceed under the arbitration provision. This appeal resulted.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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