dissenting.
I dissent. In my view, the writing in this case does not satisfy the “merchant’s exception” to the statute of frauds in the Uniform Commercial Code.
ORS 72.2010 provides in part:
“(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by the authorized agent or broker of the party. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this subsection beyond the quantity of goods shown in such writing.
“(2) Between merchants, if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) of this section against such party unless written notice of objection to its contents is given within 10 days after it is received.”
ORS 72.2010(2), the merchant’s exception, applies if, but only if, all its elements are met. If that exception applies, GPL would prevail. If the merchant’s exception does not apply, then ORS 72.2010(1) does, and L-P would prevail.
It is undisputed in this case that the parties are merchants, that the document in question was received within a reasonable time, that the recipient had reason to know the contents of the document, and that the recipient did not give notice of objection within 10 days after receipt. That being so, the dispositive question is whether the writing that GPL sent to L-P constituted “a writing in confirmation of the contract” or, instead, constituted something less, such as an offer.
Both the majority and the concurrence focus on the nature of the merchant’s exception, its difference from the usual statute of frauds, and the requirement that the writing be sufficient against the sender. 323 Or at 122-23 (Van Hoomissen, J.); 323 Or at 128-30 (Fadeley, J., concurring). *131That discussion is beside the point. The disputed issue is whether the writing here is “in confirmation of the contract” and thus whether the merchant’s exception, ORS 72.2010(2), applies at all. An analysis of the document at issue leads me to conclude that the merchant’s exception was not satisfied, because that document was not “a writing in confirmation of the contract.” ORS 72.2010(2).
The first page of the document is labeled “ORDER CONFIRMATION.” At the bottom of the page, the following material appears (after several other lines of text) below a general heading of “CONDITIONS OF SALES”: “SIGN CONFIRMATION COPY AND RETURN.” The second page of the document, also labeled “ORDER CONFIRMATION,” has different wording at the bottom. The second page contains this at the bottom left:
“ORDER ACCEPTED BY:_ FIRM NAME
“SIGNATURE & TITLE DATE”
The majority holds that the foregoing document does not require the recipient to sign the confirmation copy and return it. The majority reasons: “we read the forms to be nothing more than a request for an acknowledgment of the receipt of GPL’s forms.” 323 Or at 128.
The majority’s reasoning is flawed for four reasons. First, under the majority’s reading of the document, the key word “ORDER” is deemed to mean two different things on the same page of the same document written by the same person. In the phrase “ORDER CONFIRMATION,” the majority construes the word “ORDER” to refer to the substantive terms of the agreement to order goods. If it were otherwise, the majority could not hold that the document is sufficient to constitute “a writing in confirmation of the contract.” ORS 72.2010(2). Yet, in the phrase, “ORDER ACCEPTED BY,” the majority construes the word “ORDER” to refer only to GPL’s invoice. Logic and common sense demand that the same word on the same page of the same document written by the same person mean the same thing. Cf. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (“use of the same *132term throughout a statute indicates that the term has the same meaning throughout the statute”). In this case, the context demonstrates that “ORDER” in each instance refers to the substantive terms of the agreement to order goods.
Second, the majority drains all the blood from the word “ACCEPTED.” In the context of a commercial document of this kind and of the UCC, the word “accepted” is most likely to refer either to “acceptance” of an offer so as to form a contract or to “acceptance” of goods. See Hogan v. Alum. Lock Shingle Corp., 214 Or 218, 226, 329 P2d 271 (1958) (“[i]t is hornbook law that the existence of a contract is grounded on offer and acceptance and there is no agreement until the offer has been accepted in accordance with its very terms”); ORS 72.1030(2)(a), 72.6060 (defining “acceptance of goods” for purposes of Article 2 of the UCC). Moreover, even in common parlance, to “accept” means to “assent to the receipt of,” “to make an affirmative or favorable response to,” or “to assume * * * an obligation to pay.” Webster’s Third New Int’l Dictionary, 10-11 (unabridged ed 1993). That definition requires an affirmative act, and it also implies that the option of rejection, its antonym, is available as an alternative response to the thing as to which acceptance is being sought. The words “ACCEPTED BY” imply that the recipient must act further before an order (contract) comes into existence, whether those words are given their ordinary meaning or a more specialized meaning. The drafter of the document at issue chose the active “ACCEPTED BY,” not the passive “RECEIVED BY” or “ACKNOWLEDGED BY” that would be consistent with a confirmation. Yet, the majority reads “ACCEPTED” to mean nothing more than “a request for an acknowledgment of* * * receipt.”
In addition to giving inconsistent meanings to “ORDER” and no effect to “ACCEPTED,” the majority’s opinion gives no weight to the nature and location of the phrase “SIGN CONFIRMATION COPY AND RETURN.” The flatly worded directive — “SIGN CONFIRMATION COPY AND RETURN”— is mandatory. Additionally, the fact that that phrase appears below the heading “CONDITIONS OF SALES” suggests that the requirement to sign and return the *133copy was a condition that had to be satisfied before an order (contract) came into existence.
As the court stated in Great Western Sugar Co. v. Lone Star Donut Co., 567 F Supp 340, 342 (ND Tex 1983), aff'd 721 F2d 510 (5th Cir 1983), “[a] true confirmation requires no response.” Here, as in Great Western Sugar Co., the document required the prospective buyer to sign and return a copy, thus reducing the document to the status of an offer that would take effect if and when it was “ACCEPTED BY” a representative of the buyer.
Other decisions are to similar effect. See, e.g., Adams v. Petrade Intern., Inc., 754 SW2d 696, 706-07 (Ct App Texas 1988) (a writing did not satisfy merchant’s exception even though it used the word “confirmation,” because the writing required the recipient to sign and return a copy and had the word “ACCEPTED” followed by a blank signature line); Kline Iron & Steel v. Gray Com. Consultants, Inc. 715 F Supp 135, 141-43 (CD SC 1989) (a writing did not satisfy the merchant’s exception when its printed “terms and conditions” were “for immediate acceptance” and when the form provided a line labeled “ACCEPTED” for the buyer to sign and date). Although none of the reported cases from other jurisdictions is exactly like this one, the theme of those cases is consistent: if the recipient is required to sign and return a copy for the purported “confirmation” to be “ACCEPTED,” then the merchant’s exception is not satisfied. The majority’s departure from that theme frustrates the legislature’s directive to strive for uniformity among the jurisdictions that have adopted the UCC. See ORS 71.1020(2)(c) (stating that an “[u]nderlying purpose[ ] and policfy] of’ the UCC is “[t]o make uniform the law among the various jurisdictions”).
The majority’s fourth error is its failure to give effect generally to the “CONDITIONS OF SALES.” Those conditions were not asserted to have been part of the alleged oral contract. Therefore, their presence as new material terms (even if other terms remained unchanged from earlier negotiations) made this document a new offer.
*134In summary, because the document at issue required a response, it did not constitute “a writing in confirmation” of a prior oral agreement as required by ORS 72.2010(2). The document thus did not satisfy the merchant’s exception to the UCC’s statute of frauds, ORS 72.2010(1).1 Accordingly, the trial court erred in failing to grant L-P’s motion for a directed verdict on its affirmative defense of the statute of frauds. I respectfully dissent from the majority’s contrary holding.
Carson, C. J., and Gillette, J., join in this dissenting opinion.The concurring opinion discusses the nature of the merchant’s exception and its differences from the usual statute of frauds. That discussion is beside the point. The disputed issue is whether the merchant’s exception applies at all, an issue that the concurrence does not address.