1. Are we in UCC or Common Law?

Goods vs. Services [princess cruise test]

Go to C-Law or UCC sheet

Both Merchants?

2. Formation Issues [oral or written]

At what point was there a contract?

Agreement formed from preliminary negotiations

Agreement to negotiate in good faith

Formal contract contemplated

Offer

Acceptance

Consideration

Revocation?

Part performance?

Battle of the forms

3. Does statute of frauds apply?

6 types of contracts

Is there a writing to satisfy the SOF?

Essential terms

If no, is there an exception?

4. Contract Interpretation

Integrated Writing/Partially Integrated Writing

Parol Evidence Rule

Exceptions

5. Other relief theories

Promissory Estoppel

Unjust Enrichment

6. Implied Terms

Good faith

Warranties only in UCC except for residential leases/homebuilders

7. Contract Avoidance

Minority

Undue Influence

Duress

Incapacity

*** Are we in UCC or common law?*** CHECK FORMATION FIRST1.DOES Statute of Frauds APPLY?Statute of Frauds is: an additional requirement for contract to be enforceable.Non-compliance with the statute of frauds is an affirmative defense 1.Executor/Administrator to pay debts of estate from his own assets

2.Suretyship (debtor, creditor, surety) COP > COD > UOT2-104 Merchants

a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill

between merchants = both

[look at this carefully, its not that narrow = if NOT a consumer (ie: you are reselling, probably a merchant] See: DINAs delectables you fuck up.

2-105 Goods

goods = movable at time of identification of sale (includes unborn young of animals and crops) NOT MONEY, NOT REAL ESTATE; you can have a sale for future goods [barns were goods in Buffaloe v. Hart]Includes 2-107 = things attached to realty timber, oil, gas; capable of severance without material harm Includes dealor-distributor relationships (Leibel) WHAT IS NOT UNDER UCC is hiring someones SERVICES to sell your goods.

IF MIXED: look for predominant factor/purpose/thrust (language of contract, nature of business of the supplier, intrinsic worth of materials) PRINCESS CRUISES TEST

Where labor is devoted to creation of goods probably goods but check using test.2-305 Open Price Term

Parties can conclude a contract even if price is not settled. Price will be a reasonable price at time of delivery if: nothing is said to price, is left to be agreed or failure to agree, or price is to be fixed to agreed market terms or standard. MAKE SURE THAT THEY FIRST INTEND TO AGREE TO DO THIS. Price to be fixed by the seller or buyer in good faith.

When one party fails to fix price through fault, other can fix or treat contract as canceled.

If there is no intention to be bound by parties, and the price isnt fixed or agreed, no contract. Must return goods, or if you cant, pay reasonable value at time of delivery. ***DIFFERENT RULE FOR COMMON LAW court will generally not enforce price unless calculated formula2-204 Formation in General

1. Any manner sufficient to show agreement, including conduct which recognizes a contract exists

2. Agreement sufficient to constitute contract even though moment of making is undetermined

3. Even though one or more terms are left open, no failing for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for remedy.

a. More terms open, less likely to have agreement2-205 Firm Offers (Option Contracts) MADE BY A MERCHANT (not, non-merchant)

Signed writing (at minimum, initials authentication is essence of this section) which by terms gives assurance to be held open, not revocable for lack of consideration, not to exceed 3 months if no time stated NO CONSIDERATION NEEDED (likely to accept electronic communication)

If assurance is on a form supplied by the offeree, the offeror must sign the assurance separately!!!

OPTION CONTRACTS CANNOT BE ORAL will be revocable. 2-206 Offer and Acceptance (Contract formation)

1. Unless otherwise unambiguously indicated by language or circumstances

a. Offer = inviting acceptance in any manner by any medium reasonable to the circumstances (look to common law)

b. See 2-206 for shipment/conforming goods/inviting acceptance (either shipment or prompt promise to ship is proper means of acceptance)c. Where beginning of performance is reasonable mode of acceptance, an offeror who is not notified of acceptance within a reasonable time may treat the offer as lapsed. (beginning of performance must unambiguously express the offerees intention to engage himself; you have to have NOTICE to other party; HOWEVER, under common law you can still have performance having a temporary bar to revocation)

2-207 Additional terms in acceptance/confirmation

prevents last shot rule from controlling terms of contract (overrides mirror image rule)

[Assume we have an offer already by this point see common law rules for offer]

#1 IS FOR MERCHANTS OR NON-MERCHANTS

1. A definite and seasonable [at or w/in time agreed or reasonable time] expression of acceptance OR written confirmation operates as an acceptance, UNLESS expressly made conditional on assent to the additional OR different terms.

(make sure you actually have an expression of acceptance)

(if you expressly condition acceptance, then you have counter-offer; can only be done with clear and definite language; material difference not enough) My acceptance of your offer is conditional on your assent to all the terms of my acceptance= COUNTEROFFER IN UCC AND COMMON LAW (you can have oral agreement, with written confirmation after. Terms become part of agreement if they reflect oral agreement. You cannot have conditional acceptance after you have an oral agreement)

#2 IS BETWEEN MERCHANTS ONLY ARE THEY MERCHANTS?

IF NOT, Additional terms NOT part of contract but proposals for additional terms.2. Additional terms are proposals for addition to contract. Terms become part of the contract UNLESS

a. Offer expressly limits acceptance to terms of offer

b. Material alteration (surprise or hardship test)

c. Notification of objection to them has already been given, or is given within a reasonable time after notice of them is received i. If no response of objection given, inclusion has been assented to.

***cant have silence!* #2 only for additional terms. However: 1)comment three says additional and different; 2)different terms should be subject to same analysis b/c they will almost always materially alter so it doesnt matter; 3)knock out rule: they fall out, we are left with whatever was agreed upon as contract

3. Conduct by both parties sufficient to make a contract although writings do not establish one. In this case you have terms on which writings of parties agree, together with any supplementary terms in provision of this Act. (Actions speak louder than words)

2-207 REVISED says everything not agreed upon = UCC gap fillers

2-309 Notice of Termination

(2) Where contract provides for successive performances but is indefinite in duration, it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.

Good faith + commercial standards = reasonable time

(3) Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable.

Notice: enough not to be stripped of investment totally

Parties can agree: no notice needed, gap fillers waived, unless unconscionable2-313

Express warranty created by:

1. Affirmation of fact or promise that creates an express warranty that goods shall conform to affirmation or promise

2. Description of the goods

3. Sample or model

4. No formal words express or guarantee needed

5. PURPORTING OPINION IS NOT ENOUGH, neither is affirmation of value

6. Past deliveries can set a description of quality

7. Technical descriptions are okay

2-314 Implied warranty of merchantability (implied in law)

for ALL goods sold/produced by a merchant (not resale in this context, more strict than UCC). Not applied to a non-merchant sale/ SELLER MUST BE MERCHANT Quality

Fit for ordinary purposes

YOU CAN EXPRESSLY DISCLAIM

Pass w/o objection in trade under contract description

Fair/average quality

Fit for ordinary purposes

Even kind quality and quantity

Adequately contained, packaged and labeled as agreed

Conform to the promise or affirmations of fact made on label/container

2-315 Implied warranty/fitness for particular purpose

where seller has reason to know of purpose + buyer relies , creates implied warranty

(implied in fact)

Buyer has specific purpose [usually something other than ordinary purpose]

Seller knows of specific purpose

Buyer relies on sellers expertise in fulfilling his needs of special purpose

Goods dont have to be generally defective, just not effective for buyers specific purpose

2-316 Disclaiming warranties

(2) to exclude, language must include mention of merchantability and be conspicuous (Reasonable person would notice). Language to exclude all implied warranties is sufficient IF there are no warranties which extend beyond the description on the face therof.

(3) unless otherwise, all implied warranties are excluded by expressions like as is, with all faults, or something else that calls buyers attention to the exclusion AND

buyer examined the goods/sample/model as fully as desired OR has refused to examine, there is NO IMPLIED WARRANTY with regard to defects which an examination ought reveal AND an implied warranty can be excluded or modified by course of dealing or course of performance or usage of trade

CONTRACTS CAN HAVE BOTH IMPLIED MERCHANTABILITY + IMPLIED FITNESSPAGE 1Contracts I Boyack Fall 2010