Applies to the sale of goods, goods are movable items identified at the time of contracting.
- Those who regularly deal in the terms for sale or holds themselves out as experts in the field
- *merchants have a duty of honesty and confirming to reasonable commercial standards.
- Outward manifestation of present contractual intent definite and certain terms communicated to the offeree
- *At common law the terms are quantity, time, identity of the parties, price and subject matter
- *Under UCC, the required term is quantity
Held open for a certain period of time, must have consideration
Merchants firm offer
An offer by a merchant signed in writing to keep open for the stated time of reasonable time, not to exceed 3 months
- At common law, unequivocal assent to the terms of an offer
- Under UCC, the acceptance can contain additional or different terms provided it is a definite and seasonal expression of acceptance
- *prompt shipment constitute an acceptance.
2-207 Acceptance-Additional Terms
- Additional terms in an acceptance will apply between merchants unless:
- 1. The original offer conditions acceptance on the terms of the offer only
- 2. The offeror object to new or additional terms with in a reasonable time
- 3. Terms materially change the original offer
Exists when there is a bargained for exchange of promises, incurs legal detriment
Promissory Estoppel (substitute for consideration)
- Offer is made, reasonable reliance by offeree, offeror changed his position, offeror will be barred from raising lack of consideration as a defense
- “Foreseeable detrimental reliance”
Statue of Frauds
- The statue of frauds states that all contracts for (M.R.D.O.G.) mush be in writing (Marriage, Real Property, Debt of Another, One Year, Goods $500+)
- Exceptions (S.P.M.F.R) sufficient memo, part performance, main purpose, full performance by one party and receipt of goods
- UCC-Sufficient Memo/Written Confirmation
- UCC provides that if a merchant send a written confirmation of a contract to another, the other merchant is bound and is held to have signed unless he objects within 10 days following receipt of the confirmation.
Parol Evidence Rule
When parties have entered into a written agreement, fully integrated, the court will not allow extrinsic evidence to contradict the terms of the agreement unless an exception found
Parol Evidence Exceptions
Lack of consideration/ fraud/ Duress/ mistake/ ambigutity/ establish collateral agreements/ establish subsequent agreements/ separate consideration/ existence of condition precedent to legal effectiveness of written agreement
Rights Third Party Beneficiary
may not be modified or discharged after the beneficiary’s rights vest. The beneficiary’s rights will vest if she relies on the promise or manifest assent to the promise at the request of the promisor or promisee.
Third Party Beneficiary Approach
Define:a third party beneficiary contract is one wherein performance by the promisor will benefit a third party/Privity/Intent to Benefit/Classification/vesting (notice and assent)/defenses
Perfect Tender Rule-UCC
When a delivery under a contract for the sale of goods fail to conform in any respect to the contract, the buyer has the right to reject the delivery. The seller, however, must be given an opportunity to cure the defective deliver if the time for performance has not yet expired.
Oral Condition Precedent
Oral statement made prior to the signing of the contract that something will or will not be done prior to the contract going into effect
False statement of material fact to induce reliance, makes contract voidable by innocent party
- Mutual=no contract
- Unilateral (recision)
- Offeree doesn’t know=contract
- If offeree knows=no contract
Where parties make an oral agreement which, when reduce to a writing, is mistranscribed, the aggrieved party is entitles to reformation so that the writing corresponds to the oral agreement.
- Act by one of the contracting parties transferring a right to a third party after the contract has been formed
- Act by one of the contracting parties transferring a duty to a 3rd party after the contact has been formed
- Define/privity exception/right assignable/valid present assignment/ effect of valid assignment/defenses
A condition is an event or act the happening of which creates or extinguishes an absolute duty to perform
A conditioning event must occur before inorder to create an absolute duty to perform
- Mutually dependent performances must be rendered simultaneously
- Occurrence of a condition extinguishes a previously absolute duty to perform
Complete Performance, substantial performance or divisibility: a contract with may be separated
- (Swap Dive)
- Substantial Performance, Waiver, Anticipatory Repudiation, Prevention, Divisibility, Impossibility of performance, voluntary disablement (anticipatory rep through conduct), estoppel
- IM FOR SANDI
- Impossibility of performance/modification/frustration of purposes/Occurrence of condition subsequent/ Rescission/ Substituted Contract/ Accord and satisfaction/ notation/ defenses to formations/ Impracticability
- Voluntary relinquishment of right
- Ex: acceptance of defective performance
- Language or conduct indicating unwillingness to perform a legal duty before that duty is due.
- If no party had performed=sue now
- If one party has fully performed, must wait until time of performance to sue.
Anticipatory repudiation through conduct.
Impossibility of performance
Impossible to perform by anyone, unforeseeable at the time of contracting
- At common law, change in the terms of the original contract requiring mutual assent and consideration
- Under the ucc, no consideration needed, only good faith
Frustration of purpose
Due to unforeseeable event value of the contract (by both parties) is totally destroyed
- Second separate contract that alters first contract
- *requires new consideration or detrimental reliance
Accord and Satisfaction
- Accord-executory agreement intended to compromise an existing obligation
- Satisfaction-performance of the accord
Event renders performance commercially impossible (10 times rule)
- Unjustified failure to perform an absolute duty
- Major: Essence of the bargain, excuses injured party counter performance and allows rights to damages
- Minor: requires continued performance by injured party and a suit for damages for defective performance
to cancel a contract, putting the parties back to the position as if the contract had not existed.
- Mutual agreement to terminate contract
- *look for unilateral mistake
- Equitable remedy that forces other party to perform
- *cant be for work (slavery)
- “benefit of the bargain rule”
- Plantiff’s expected interest in the contract
- “lost profits”
- Hadley v. Baxendale, Those damages that are foreseeable at time of contract and a probable result of the breach of those that naturally flow from the breach.
- *foreseeable, reasonably certain, unaviodable
Provisions in contracts which set the amount of damages in advance in event of breach if actual damages would be difficult to ascertain must be tailored to the circumstances of the contract.
General and special unavailable, p may seek out of pocket damages
Put parties in the position if contract had never been formed. D return to P any benefit D has received, used to prevent unjust enrichment
- Terms of offer open to multiple interpretations
- 1. both parties have reason to know of ambiguity=no contract
- 2.neither party knew= no contract
- 3. 1 party knows/had reason to know, the law will favor an interpretation according to the uniformed party
- Breach party can recover the reasonable value of a benefit conferred onto the non-breaking party if
- 1) P has conferred a benefit on D
- 2) P had a reasonable expectation of being paid
- 3) Benefits were conferred at the request of the D
- 4) 4) D would be unjustly enriched if it retained the benefits without compensation
- Mutual assent (offer and acceptance)
- Consideration (bargained for legal detriment) or a substitute; and
- No defenses to formation
→ voidable K. Look for false assertion of facts or concealment of facts that induces the K. No requirement of fraud.
(physical or economic) → voidable K. Look for “bad guy” – improper threat and “vulnerable guy” – no reasonable alternative.
Absence of Consideration
if promises exchanged at the formation stage lack elements of bargain or legal detriment → no K exists
- 1. Illegal subject matter → K is void;
- 2. Legal subject matter, but illegal purpose → K is enforceable only by the person who did not know of the illegal purpose.
Buyers remedies prior to accptance
- a. cancel
- b. recover k price paid and
- -cover by purchasing substitute goods and receive damages for the difference between the cost of to cover and K price plus General and Special Damages
- -Recover damages difference market price and K price
- c. specific performance/replevin
Buyers remedies after acceptance
- a. B pays for contract price less damages for defective goods
- b. B notify seller of deduction in K price. Measure of damages is the difference between the value of goods accepted and the value if conformed to K plus General and Special Damages.
Sellers remedies prior to acceptance
- a. Cancel K
- b. Withhold delivery
- c. Stop goods in transit
- D. resell and recover damages
Sellers Remedies after acceptance
- A. Action for price plus special damages for goods accepted by buyer
- B. Reclamation of goods used if buyer is insolvent.