Contracts___Second_Semester___Taylor - Agreements to Agree...

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Agreements to Agree o A mere agreement to agree with definite terms left out is unenforceable. More so when there is a term about price left out. Even more so when specific performance is requested. o A term doesn't have to be included, but there must be a methodology for determining what the term was supposed to be. (IE: Agreeing on an appraiser's value, etc.) o UCC S. 2-204(3) : K doesn't fail for indefiniteness even though one or more terms is left out if the parties intended to make a K and there is a reasonably certain basis for giving an appropriate remedy. Limits on the Scope of Traditional Offer-Acceptance Analysis : o There are instances where executives agree simultaneously to a framework and then hand it over to attorneys for a formal closing later. o Usually occurs in large, complicated deals. Introduction to Contract Formation in the Form Contract Setting : o UCC S. 2-204(2) : An agreement sufficient to constitute a K for sale may be found even though the moment of its making is undetermined. o UCC S. 2-207 : Battle of the Forms (1): A definite and seasonable expression of acceptance or a written confirmation sent within a reasonable time is acceptance even though it states additional terms, unless acceptance is expressly made conditional on assent to the new or different terms. (2): Generally, additional terms are just proposals for addition. But, between merchants, additional terms become part of the K unless: (a): The offer expressly limits acceptance to the terms of the offer. (b): The new terms materially alter the K Focuses on "surprise or hardship" if incorporated (c): notification of objection to the new terms has already been given or is given within a reasonable time. (3): Conduct by both parties which recognize the existence of the K is sufficient to establish a K although the writings are not sufficient. This is when both parties say that the acceptance is conditioned on the new terms being accepted, or when both object. The terms would be those on which both parties agree, and also any supplementary terms under the UCC. o Four ways to establish a K under 2-207: Definite and seasonable expression of terms even though there are additional terms in the acceptance.
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Written confirmation even though there are additional terms. Acceptance where the terms are essential because the acceptance requires assent to the additional terms. When we have writings that don't agree, but the parties act like there is a contract. o Under common law if the acceptance terms were different, the acknowledgement would be a counter-offer and the buyer's use of the goods would be acceptance to the seller's new terms. The common law basically said the last form wins.
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This note was uploaded on 11/28/2009 for the course LAW 3300 at Cornell.

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Contracts___Second_Semester___Taylor - Agreements to Agree...

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