dissenting:
I respectfully dissent. Insofar as the issue of contract formation is concerned in this case, we are confronted with a “battle of the forms” case involving the interpretation and application of U.C.C. § 2-207. I would affirm.
Pennwalt’s proposal of September 7, 1976, was an “offer.” It was submitted to Daitom in response to solicitations initiated by Daitom and it contained specific terms *1583relating to price, delivery dates, etc., and its terms were held “open” for Daitom’s acceptance within 30 days. In my view, Daitom accepted the offer with its purchase order. That order repeated the quantity, model number, and price for the items as those terms appeared in the Penn-walt proposal and, by reference, it incorporated four pages of specifications attached to Pennwalt’s proposal or “offer.” The purchase order did contain some different and additional language from that contained in Pennwalt’s proposal. However, the Code has rejected the old mirror image rule. Thus, I agree with the district court’s finding/ruling that a contract was formed in the circumstances described.
I also agree with the district court’s conclusion that the terms of Pennwalt’s proposal constituted the “terms of the contract.” I do not agree, as Daitom argues, that its “acceptance” was made “conditional” upon Pennwalt’s assent to the additional/different terms set forth in Daitom’s purchase order. The court correctly found no such express condition in Daitom’s acceptance.
The “knock-out” rule should not, in my view, be reached in this case. It can be applied only if, as Daitom argues and the majority agrees, the “conflicting terms” cancel each other out. The “knock-out” rule does have substantial support in the law, but I do not believe it is relevant in this case because the only conflicting terms relate to the scope of the warranty. In this case, it is not an important consideration because, pursuant to the express time limitations contained in Pennwalt’s “offer,” Daitom lost its right to assert any warranty claim. There was no term in Daitom’s purchase order in conflict with the express one-year limitation within which to bring warranty actions. I agree with the district court’s reasoning in rejecting Daitom’s contentions that the one-year limitation period should not apply because (1) the term failed of “its essential purpose” of providing Dai-tom with a limited remedy under U.C.C. § 2-719(2) and (2) the time-limit was tolled due to Pennwalt’s alleged fraudulent concealment of the defect. I concur with the trial court’s finding that Daitom made no showing that the one-year limitation period was unreasonable because of some act of Pennwalt. As to the fraudulent concealment allegation, the court properly observed that Daitom did not plead this claim with the particularity required and, further, that the alleged fraudulent acts were not independent of the alleged breaches proper.