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Unformatted text preview: Chapter 23
NATURE AND FORM OF SALES Introduction
Contracts for the sale of services and real estate
are governed by the common law. Contracts for the sale of goods (new or used tangible personal property) are governed by Article 2 of the Uniform Commercial Code (UCC). The UCC does not apply to securities or intellectual property.
2 Nature and Legality
A sale of goods is a present transfer of title of
tangible personal property for a price. The following are NOT Sales: A bailment is a transfer of possession and not title
and is therefore not a sale. A gift is not a sale because there is no price paid. A contract for services is an ordinary contract and is not governed by the UCC. 3 Nature and Legality
A contract consisting of both services and
goods is classified according to its dominant element. If a service, then common law governs. If a sale, then UCC 2 governs. 4 Formation of Sales Contracts
Subject matter and quantity are required
elements; other terms may be left open as long as the intent to contract is clear. Requirements for merchants vs. non-merchants. A merchant's firm offer is irrevocable for a reasonable time period. Acceptance must be in a reasonable manner and time.
5 Additional Terms
"Mirror Image" Rule. Additional terms: Non-Merchant(s): additional terms constitute
counter offer. Merchants: "Battle of the Forms" additional terms become part of the contract, as long as they do not materially change the duties and the other party does not object in a timely manner. 6 UCC Rules for Additional Terms in Acceptance
Nonmerchants Nonmerchant/Merchant Additional Terms Merchants Additional Terms Material Offer Is Limited Objection Contract without Additional Terms Contract with Additional Terms 7 Defenses to Formation
The same defenses available to formation under
common law are incorporated in Article 2, including illegality. In addition, the UCC recognizes unconscionability as a defense to formation. 8 Open Terms
The UCC does not require every term to be
stated for a contract to be valid. Article 2 provides for missing terms. Price may be open, stating a formula for how the price would be figured later. Some open terms are interpreted by past patterns in their course of dealing. Modifications are binding if they are voluntary.
9 Output & Requirements Contracts
In output or requirements contracts, the
quantity is not specified, but are valid contracts if entered in good faith. Output Contracts. A contract for the entire product produced by a
seller in a given time period. Requirements Contracts. A contract for the seller to sell whatever quantity
the buyer needs. 10 Form of Sales Contract
Statute of frauds provides that a sales contract for
$500 or more must be evidenced by a writing. Confirmation memorandum allows two merchants to be bound after an oral agreement with a memo or letter signed by only one party without objection for ten days. 11 Exceptions To Writing Requirement
Several exceptions to the UCC statute of frauds
exist: Specially Manufactured Goods for Buyer. Receipt and Acceptance of Goods by Buyer. Full or Partial Payment by Buyer. Admission by Party against whom enforcement is
sought. 12 Uniform Law for International Sales
Uniform rules for international sales are
applicable to contracts for sales between parties in countries that have ratified the United Nations Convention on Contracts for the International Sales of Goods (CISG). Under the CISG, a contract for the sale of goods need not be in any particular form and can be proven by any means.
13 Leases of Goods
Article 2A of the UCC regulates consumer
leases, commercial leases, finance leases, nonfinance leases, and subleases of tangible movable goods. A lease subject to Article 2A must be in writing if the lease payments will total $1,000 or more. A commercial finance lease is irrevocable. 14 Leases of Goods
Warranties. Supplier makes express warranties
to Lessor, who in turn passes them to the Lessee. Financier-Lessor does not make implied warranties. Irrevocable Promises: Commercial Finance Leases. Lessee must perform even if "hell or high water"
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