Contracts Outline II-31pp - Contracts Outline II I...

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Contracts Outline II I. Qualified Acceptance: The battle of forms a. Modern business uses various boilerplates to conduct business and memorialize oral K’s i. Boilerplates - form K’s that are pre-written for all agreements. ii. Saves time for companies iii. Hard to determine when offer and acceptance have been made in classical view of K. iv. Mirror image rule is lost 1. Just an exchange of pre-written K terms by each company. Acceptance will rarely mirror the original offer. v. Last Shot rule causes problems 1. Last shot rule - a party impliedly assented to and thereby accepted a counter-offer by conduct indicating a lack of objection to it. a. Usually favored the seller because their form created the last power of acceptance in the buyer and buyer usually would not read the K. b. UCC 2207 i. Used to get rid of problems of classical K theory. ii. First question that needs to be answered...Are we in the UCC? 1. Determine nature of the K-has to be predominately a goods K to be UCC a. 3 questions to ask to determine if service or goods K i. Is it a moveable good? ii. Look at the language of the K. iii. The nature of the business supplier iv. Intrinsic worth of the materials v. services iii. (1) A definite and seasonable expression of acceptance or a written confirmation, which is sent within a reasonable time, operates as an acceptance even though it states terms additional to or different from those offered or agreed upon , unless acceptance is expressly made conditional on assent to the additional or different terms. ( Then it is a counter-offer) (2) The additional terms are to be construed as proposals for addition to the K. Between merchants (skip to #3 if not merchants) such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer (Needs to be really explicit!) (b) They materially alter it; or (c) notification of the objection to them has already been given or is given within a reasonable time after notice of them is received. (3) Conduct by both parties which recognizes the existence of a K is sufficient to establish a K for sale although the writing of the parties do not otherwise establish a K. In such case the terms of the particular K consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provision of this Act. 1. Merchants - UCC 2104- a person who deals in goods of the kind or otherwise by his occupation holds himself 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 1
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employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.
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