Sales - 1 & 2

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How are K terms determined under UCC?
- missing - gap fillers
- conflicting - 2-207 battle of the forms
How does 2-201 make it easier to enforce K under SoF?
- minimizes how much writing is required
- eliminates certain signature requirements
- eliminates the No Enforceable K defense when K has already been performed
When is unconscionability determined?

at the time of formation of K
Do courts find unconscionability as a matter of law or fact?

law
If a court finds a K to be unconscionable, what are its options?
- refuse to enforce the K
- only enforce the non-unconscionable part of the K
- limit the application of the unconscionable clause
Are monetary damages generally awarded for unconscionability?

no
What is the basic test for unconscionability?

whether the clause is one-sided in light of the general commercial background and commercial needs of the particular trade or case
What is the Lewis test for unconscionability?
- Procedural?
- Substantive?
- Both?
What constitutes procedural unconscionability?
- bargaining naughtiness or negotiation naughtiness
- lack of meaningful choice
Will the court find unconscionability if there is a ton of procedural but the terms of the K are mostly fair?

No
What constitutes substantive unconscionability?
- overly harsh one sided terms
- inimical to public policy
- no reasonable or subjective parity b/t values exchanged
Will the court find unconscionability if there is a ton of subjective but it is light on procedural?

No
Is there unconscionability if the "injured" party acted of his own free will rather than because of the unconscionability?

No - ppl have the right to make stupid Ks
What is the definition of GF?

honesty in fact and the observance of reasonable commercial standards in fair dealing
Every K or duty w/in the UCC imposes a duty of GF in its what?

enforcement or performance
Is GF required in negotiation?

no
Is there an independent CoA for failure to perform/enforce in GF?

No but constitutes breach and can sue under that
Is GF a question of law or fact?

fact
Are modifications to K subject to GF?

yes
What is the definition of a merchant?
- person who deals in goods of the kind
- person who by his occupation holds himself out has having knowledge or skill peculiar to the goods/practices involved
- person to whom knowledge/skill is attributed by his employment
The sections in Art. 2 that apply to merchants only do so regardless of whether the M is acting in his M capacity (T/F)

false - they only apply when he is in his mercantile capacity
What is the definition of "goods"?

things that are movable at the time of identification to the K for sale
Goods must be both ______ and ________ before any interest can pass in them.

existing & identified
When does cancellation of a K occur?

when either party puts an end to the K for breach by the other
What is the effect of cancelling a K?
- all obligations are discharged
- cancelling party retains any remedy for breach of the whole K or the unperformed balance
What are the SoF requirements for the sale of goods under (2-201)?
- the price is $500 or more
- writing sufficient to indicate that K has been made
- signed by the party against whom enforcement is sought
- must specify a quantity
Against whom is a K which satisfies the SoF enforceable?

against any party which signed it
What is the M exception to the SoF?

if w/in a reasonable time a writing in confirmation of the K and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the SoF requirements against such party
If a party doesn't want the M exception to the SoF to apply, what must he do under 2-201(2)?

send written notice of objection to the contents in the written confirmation w/in 10 days of receipt
When can a K that doesn't satisfy the SoF still be enforceable under 2-201(3)?
- (1) goods are specially manufactured for B and not suitable for sale to others
- (2) party against whom enforcement is sought admits the K in pleadings, testimony, or otherwise in court
- (3) payment has been made and accepted for goods or goods have been received and accepted
Must the writing under the SoF be delivered to anyone to be enforceable?

no
Under the PER (2-202) extrinsic evidence may not be used to do what if the parties intended the writing to be a final expression of their agreement?

contradict terms in the agreement
Under the PER (2-202) extrinsic evidence may be used to do what even if the parties intended the writing to be a final expression of their agreement?

explain or supplment terms in the agreement
Can CoPCoDUoT be used to explain or supplement a K even if the writing isn't ambiguous on its face under 2-202?

yes
B/t M under 2-207 additional terms are construed as what?

proposals for addtion to the K
b/t M, under 2-207 additional terms will become part of the K unless:
- (1) offer expressly limits acceptance to the terms of the offer
- (2) they materially alter it
- (3) notification of objection has been given or is given w/in a reasonable time after notice of them is received
Does the PER apply to establishing the formation of an implied warranty?

no
Must there be consideration for an agreement modifying a K under 2-209?

no
Can a party who has made a waiver affecting a portion of the K retract that waiver under 2-209 and if so how?

yes by reaosnable notification received by the other party that strict performance will be required from then on out

No retraction if the other party has materially changed its position in reliance on the waiver
Will a K fail for indefiniteness if one or more terms are left open in it under 2-204?

not if the parties intended to make a K and there is a reasonably certain basis for giving an appropriate remedy

Author

stac8199

149086

Card Set

Sales - 1 & 2

Description

Scope, Form, Formation, & Readjustment of K

Updated

2012-04-21T19:01:31Z

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