The “surprise or hardship” approach to UCC section 2-207 is the approach courts should use to determine the applicability of liability clauses in the battle of the forms. However, courts use varying approaches to decide whether clauses limiting liability materially alter the contract under UCC section 2-207. Courts have adopted three different approaches: (1) the per se material alternation approach; (2) the per se not material alternation approach; and (3) the “surprise or hardship” approach.
The per se material alteration approach focuses on the surprise or hardship factors found in comment 4 of section 2-207; however, that approach is flawed because it ignores the realities under which the parties may be operating. As well, comment 5 to section 2-207 indicates that limiting a remedy in a reasonable manner is permissible. The per se not material approach ignores the surprise or hardship language, but permits clauses to the contract which may not have been truly contemplated by both parties. The surprise or hardship approach rejects both per se approaches, and requires the party opposing the limitation to bear the burden of proving either surprise or hardship, but the broad definition of hardship can be problematic.
In 1990, the Permanent Editorial Board released a report describing the need to redraft section 2-207 because it is controversial, complex, and frequently litigated. The surprise or hardship approach, and the factors it takes into account, will aid courts in determining whether a term, such as one limiting liability, has been expressly agreed to or whether such terms materially vary from the original agreement—issues courts will consider under the revised section. As such, the surprise or hardship model should remain a practical way of determining the applicability of limitation of liability clauses in a battle of the forms context.
Colin P. Marks, The Limits of Limiting Liability in the Battle of the Forms: U.C.C. Section 2-207 and the “Material Alteration” Inquiry, 33 Pepp. L. Rev. 501 (2006).