Hardie-Tynes Manufacturing Company subcontracted with Hunger United States Special Hydraulic Cylinders Corporation to manufacture two hydraulic cylinders to be used in construction of the Jordanelle Dam in Utah. After Hardie-Tynes sent a request for quotations for Hunger’s best price for the two cylinders, Hunger responded with a letter providing specific quantity, price, delivery, and payment terms. Both parties agreed that this constituted an offer to contract. A copy of Hunger’s standard terms and conditions, which included a provision attempting to specify a mode of acceptance and limiting acceptance to Hunger’s terms, accompanied the offer. None of the terms related to payment of attorneys’ fees in the event of a contract dispute.
Hardie-Tynes accepted Hunger’s offer by sending a purchase order, which required payment of attorneys’ fees in the event that Hardie-Tynes commenced litigation upon Hunger’s default. Like Hunger, Hardie-Tynes limited the agreement to its own terms.
The cylinders manufactured by Hunger did not comply with government standards. Hardie-Tynes sued Hunger for breach of contract and claimed that it was entitled to recover attorneys’ fees. Did Hunger and Hardie-Tynes enter into a contract? If so, what were its terms? Would your answer differ if the 2003 revisions to Article 2 were enacted? What if the transaction was governed by CISG? [Hunger United States Special Hydraulic Cylinders Corp. v. Hardie-Tynes Manufacturing Co., 41 U.C.C. Rep. Serv. 2d 165 (10th Cir. 2000).]