100%(1)1 out of 1 people found this document helpful
This preview shows page 1 - 3 out of 5 pages.
What is a K?A.What Law Applies? Common v. UCC Art. 2a.UCC Article 2 governs Ks involving the sale of goods. The common law governs all other Ks. i.Goods-1.Goods are all things movable at the time that they are identified to be soldunder the K. 2.Under Article 2 a number of rules depend on whether the seller and/or buyer are merchantsa.Merchants are one who regularly deals in goods of the kind sold or whootherwise by his profession holds himself out as having special knowledge or skills as to the practices or goods involved. b.A few article 2 provisions (e.g., the implied warranty of merchantability) require a person to be a merchant with respect to goods of the kind being sold i.For article 2 provisions dealing with general business practices, almost anyone in business can be deemed a merchantB.Types of Ksa.Express- are formed kby language, oral or writtenb.Implied in Fact- implied K formed by manifestations of assent other than oral or written language, i.e., by conductc.Quasi-K or implied in lawi.Not real K, but constructed by the courts to avoid unjust enrichment. C.Acceptance Required a.Bilateral K- Exchange of Mutual Promises i.A promise for a promiseb.Unilateral K-Acceptance by Performance i.The traditional unilateral K is one in which the OR request performance rather than a promise. Give promise to pay upon completionc.Modern View- Most Ks are Bilateral i.Under this view a K that can only be accepted by performance occurs in only two situations1.(i) when the OR clearly (unambiguously) indicates that completion or performance is the only manner of acceptance2.(ii) where there is an offer to the publicd.As to validity i.Void K- A K that is totally without any legal effect form the beginning- cannot be enforced by either part.ii.Voidable K- A voidable K is one that one or both P may elect to avoid( e.g., by raising a d that makes it voidable)iii.Unenforceable K1.An unenforceable K is an agreement that is otherwise valid but which may not be enforceable due to a voidable KD.Creation of a Ka.In order for a K to be created there must have been a) mutual assent between the parties (O + A), b) consideration exchanged, and (c) there can be no defenses to the creation of the KMutual Assent- Offer + AcceptanceA.In Generaloffer and an acceptance determined using an objective standardi.Did the words or conduct manifest a present intention to enter into a K?ii.Offer-Promise, undertaking, or commitment with definite and certain terms communicated
iii.Acceptance before termination by revocation, rejection, or operation of law. B.The OFFERa.Did the communication create a reasonable expectation that OR intended to be boundi.Was there an expression of a promise, undertaking, or commitment to enter into aK?