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Unformatted text preview: Sale of Goods?----> UCC Art. 2 (supplemented with CL through UCC 1-103) All other -----> Common Law, informed by 2RS of Contracts (not law, except where adopted) mixed K - majority rule is predominant factor test (some jurisdictions will split goods/svcs) Is there a K? Need: Consideration (bargained-for-exchange), Offer, Acceptance. Is K enforceable? SoF (>$500, RP, Surety, > 1-year) Exceptions to SoF: Could terminate < 1 yr, not true surety (& 3rd party benefic.), Leases for RP, Judicial Admission, Confirmatory Memo b/t merchants, Reliance (Monarco, TX exception) Breach? Material breach? If yes, Damages + Excused from Performance. If no, just damages. Restitution always available for unjust enrichment, even for breaching party (but Ct less sympathetic) K's are risk-shifting devices, Charlie Brown will walk away. Expectation is computed not at time of K, but at time of breach Unconscionability is always determined at time of contract formation. QUANTITY is sacrosanct. You can't read in a quantity term. Contract without a quantity term WILL fail for indefiniteness. UCC Merchant (2-104) = deals in goods of the kind OR holds himself out to have knowledge/skill peculiar to the practices or goods involved in the transaction (or uses an agent/broker/intermediary w/ such skills) Virtually all bizmen, but only when act in "mercantile capacity." Merchants: Good Faith = HIF + Observ of Reas. Commercial Stds of Fair Dealing in Trade. Non-merchants: Good Faith = HIF. Revised Article 1 eliminates two- prongs; now just HIF for all. But only 30 states adopted revised Art 1, and 10 of those kept old distinction. So 20 states don't distinguish, and 30 do. Consideration Yes=enforceable. No=gratuitous (only enforceable if writing, or reasonable reliance). (2RS-71) Consideration: must be bargained-for, but can be: promise, performance, forbearance, creation/modification/destruction of legal relation, or some other act. Can be given by P'ee (or someone else) to the P'or (or someone else, too). "Peppercorn" no longer works; no gratuitous promises. Need an actual bargain for a contract. Forbearance, even of an invalid claim, can be consideration (Fiege) Past svcs not consideration (not bargained-for), except in NY, where if the promise is in writing, it's okay. Reciprocal conventional inducement = promise just needs to play some role in inducing (not only role). No such thing as sufficient consideration anymore. Either a bargain or not. Reasonable person standard (but occasionally delve into parties' minds, e.g. "good faith", Fiege Damages Generally Damages compensatory, not punititive. Expect>Rel>Rest. Relief substitution, not specific. Must show damages w/ reas. degree of certainty (but courts will tip scales to victim). Punitive exceptions: copyright infringe, fiduciary duty (disgorge profits), insurance co in bad faith. In practice, favor consumer over merchant....
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This note was uploaded on 04/17/2008 for the course LAW 421 taught by Professor Sokolow during the Fall '07 term at University of Texas at Austin.
- Fall '07
- Common Law