Question

A bottling company sent a purchase order to a wholesaler that stated, "Ship 100,000 empty plastic bottles at the posted price." Two days after receipt of this purchase order, the wholesaler shipped the bottles, and the bottling company accepted delivery of them. A week after the bottles were delivered, the bottling company received the wholesaler's acknowledgement form, which included a provision disclaiming consequential damages. After using the bottles for two months, the bottling company discovered a defect in the bottles that caused its products to leak from them. The bottling company recalled 10,000 of the bottles containing its product, incurring lost profits of $40,000. Assuming all appropriate defenses are seasonably raised, will the bottling company succeed in recovering $40,000 in consequential damages from the wholesaler?

Answer 1

Answer:

The bottling company will probably succeed in recovering consequential damages because the original contract didn't include the seller's acknowledgement form. It was sent after the contract had been formed, and therefore, they cannot change the original contract unless the other party accepts that change. E.g. if you buy a car, the seller of the car cannot notify you one week after you purchased the car telling you that the car probably had a defect but they wouldn't responsible for it.