concurring.
I agree with the basis of analysis and the holding of the majority opinion.
I write separately to emphasize the following points.
The jury found that the buyer breached a sales contract and awarded damages to the seller. On the basis of the merchant’s exception this court upholds the jury award against an attack that the case should never have been submitted to the jury for want of a writing to satisfy ORS 72.2010.
The merchant’s exception, found in ORS 72.2010(2), differs from the formal requirements to satisfy the statute of frauds stated in ORS 72.2010(1) because, to be sufficient under that exception, the terms of a writing between merchants need only be sufficient to bind the sender of the writing, who is not necessarily the party against whom enforcement is being sought. James J. White and Robert S. Summers, 1 Uniform Commercial Code, § 2.5, 66, 68-69 (4th ed 1995). See also, Ingrid Michelsen Hillinger, The Article 2 Merchant Rules: Karl Llewellyn’s Attempt to Achieve The *129Good, The True, The Beautiful in Commercial Law, 73 Geo U 1141 (1985) (explaining that the distinction between merchants and nonmerchants is an intentional one that creates a classification on which the UCC bases different rules and different results).
Because the written “Order Confirmation” evidenced a contract, stated the quantity involved, and was signed by and bound the sender, it satisfied the merchant’s exception to the statute of frauds, as stated in ORS 72.2010(2). See, e.g., Fort Hill Lumber v. Georgia-Pacific, 261 Or 431, 436, 493 P2d 1366 (1972) (holding that buyer’s letter, signed only by buyer, was sufficient to satisfy ORS 72.2010(2) where defendant, seller, argued that the letter contained indefinite and inconsistent terms). Cases in accord are collected in White and Summers, above; see R.A. Hillman, Common Law and Equity Under the Uniform Commerical Code, ¶ 3.02[2], 3-4, 3-5 (1985) (quoting the drafter of the code concerning dealings between merchants).1 The verdict and judgment thereon in this case must stand.
Moreover, the preprinted line on seller-sender’s form, “sign confirmation copy and return,” does not state that doing so is a condition of the sender being bound. In transactions between merchants, care must be taken not to defeat the purpose of ORS 72.2010(2). It would defeat that purpose if a court imposes some sort of presumption that providing a signature line for acceptance, or requesting an acknowledgment signature of buyer, serves to make the sale conditional on that signature or means that the sender is not bound, absent a clear statement in the document that the transaction is conditional. Neither uniformity nor stability of transactions will be forwarded by case-by-case decision making.
ORS 72.1040 defines “merchant” and “between merchants.” No one contends in this case that either party is not a merchant.
The official commentary to UCC § 2-201 states:
“Only three definite and invariable requirements as to the memorandum are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be ‘signed’, a word which includes any authentication which identifies the party to be charged [¿.e., the sender]; and third, it must specify a quantity.” (Emphasis added.)