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Wendy's Contracts Outline Fall

Wendy's Contracts Outline Fall - WENDYS CONTRACTS OUTLINE...

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WENDY’S CONTRACTS OUTLINE Page 1 of 4 I. CHOICE OF LAW A. UCC or Common Law? §2-105 The UCC applies to the sale of goods , which are things moveable at time of formation. §2-107 Goods include existing unborn animals, crops, and things that can be severed from realty except money that is paid and investment securities. Timber and growing crops sold apart from realty may be severed by either buyer or seller. Minerals or structures must be severed from the realty by the seller prior to sale. When a contract includes both goods and services, the predominant factor test is used to determine whether or not the UCC applies to the contract. If the predominant purpose of the contract is procurement of goods with incidental services, the UCC applies. If the predominant purpose of the contract is to obtain services and goods are incidental, common law applies. In minority jurisdictions, the contracts are severed into goods and non-goods and the relevant law applied to each. Delivery and manufacturing are not services. B. If UCC, Are Parties Merchants? A merchant is one who deals in the goods involved in the transaction or holds himself out as having skill or knowledge in those goods, OR one who employs such a person (§2-104). Used with §2-205 Firm Offer. II. FORMATION §1 Contract - A contract is a promise or a set of promises for the breach of which the law gives a remedy, or for the performance of which the law in some way recognizes as a duty. §22 - A contract may be formed by conduct without identifiable mutual assent or formation (like acceptance and payment for unannounced by usual delivery) . §2-204 - A contract may be formed by any manner sufficient to show agreement, including conduct by both parties, even though its moment of making is undetermined. It will not fail for uncertainty if both parties intended to make a contract and there is reasonable basis for an appropriate remedy. A. Mutual Assent A1) IS AN OFFER BEING MADE? A1a) Offer §24 An offer is a manifestation of willingness to enter into a bargain, so made as to justify another in understanding that his assent to that bargain is invited and will form a contract, as measured by an objective standard: Whether a reasonable person in the offeree’s position would regard this as an offer. §33 An offer must contain sufficient detail and specificity to enable a court to later determine if the alleged contract has been breached and to provide a remedy. The more details contained, the more likely it would be considered an offer. Under UCC, details may be filled by the Hierarchy of Implied Terms and Gap Fillers (below) A1b) Content of Offer §33 Sufficient Certainty: 1) Even if an offer is intended, it’s no good unless the terms are reasonably certain (unlike UCC §2-204 above) 2) Terms are reasonably certain if they define when a breach exists and provide a remedy for the breach.
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