Term
What is the other term required for a sale of goods contract? |
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Definition
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Term
Does the UCC only apply to merchants? |
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Definition
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Term
How can a party accept a unilateral contract under the UCC? |
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Definition
promise to ship the goods
or
ship the goods
if they are non-conforming: acceptance and breach
UNLESS
accommodation- then counteroffer (so no K formed)
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Term
What is required for a merchant firm offer? |
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Definition
Merchant- person making the offer
writing
signed by the merchant
words of firmness
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Term
How long is a firm offer irrevocable? |
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Definition
-for the time stated or a reasonable time (if not stated)
maximum of three months (this is the maximum that it is irrevocable, so if the merchant said the offer was open for longer than three months and they don't revoke it between the three month and the time stated, you can still accept during that time) |
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Term
Under the UCC, if a party adds a term to their acceptance, is a contract formed? |
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Definition
Yes, if the parties so intend |
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Term
When is a new term added to an acceptance become part of the K? |
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Definition
when one party is a non-merchant: the term is just a proposal
when both parties are merchants: part of the K unless: objection, offer states no new terms, materially alteration |
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Term
Statute of frauds, what is in it? |
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Definition
MY LEGS
- contracts made in consideration of marriage
- K not capable of being performed in a year
-Land, over one year
-executor promises to pay estate debt
-goods $500 and over
-suretyship (guarantee)
Exception: main purpose |
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Term
Exceptions to Statute of Frauds? |
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Definition
SWAP
-specially manufactured goods
-written merchants confirmation w/o response in 10 days (both have to be merchants; quantity term must be included, signed by person asserting the defense (P))
-admission
-payment/performance |
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Term
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Definition
exclusionary effect of written contract on earlier or contemporaneous agreements as a possible source of terms of the contract
aka
extrinsic evidence is inadmissible |
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Term
What can be used to explain a sale of goods contract (exceptions to parol evidence rule)? |
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Definition
usage of trade
course of dealings
course of performance
NOTE: if clear manifestation in the K, then these cannot be brought in either |
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Term
Three examples of when a K will be unconscionable? |
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Definition
inconspicious risk shifter
K of adhesion (unequal bargaining power)
unreasonable covenant not to compete |
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Term
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Definition
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Term
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Definition
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Term
When does a seller complete it's obligation under a shipment contract? |
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Definition
gets the goods to a common carrier
makes reasonable arrangements for delivery and
notifies the buyer |
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Term
What does C & F mean and CIF? |
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Definition
C&F means cost and freight
CIF means cost, insurance and freight
ex: C&F $500 |
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Term
Can a seller demand cash? |
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Definition
Yes, but must give reasonable time to get it. The price of the goods will be the price at the time the buyer had the check ready. |
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Term
Risk of loss, absent breach by seller, non-carrier
seller-merchant? |
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Definition
seller has risk of loss until buyer is in physical possession |
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Term
Risk of loss, absent breach by seller, non-carrier
seller-nonmerchant? |
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Definition
seller has risk of loss until he tenders (makes available to buyer) |
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Term
risk of loss, absent breach of seller, carrier |
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Definition
depends on whether a destination or shipment K
if destination, seller has risk of loss until goods get to sellers place of business or residence
if shipment, sellers risk of loss ends when (1) gets goods to carrier (2) reasonable arrangments (3) notified buyer |
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Term
Risk of loss, seller breaches |
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Definition
risk remains on the seller unless:
acceptance (despite breach)
cured (w/in proper time or reasonable time if reason to beleive buyer would accept) |
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Term
who has the risk of loss under "sale or return"? |
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Definition
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Term
who has the risk of loss under "sale on approval"? |
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Definition
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Term
what are the constructive warranties? |
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Definition
warranty of title
and
warranty against infringement (merchants only) |
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Term
What are the implied warranties? |
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Definition
merchantability
fitness for particular purpose |
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Term
what is the warranty of merchantability and who does it apply to |
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Definition
merchants only
it is the fitness for ordinary purpose |
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Term
what is the fitness for particular purpose? |
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Definition
1. buyer has particular purpose
2. seller has reason to know of the p/p
3. buyer relies on seller to get adequate goods for the p/p |
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Term
which warranties apply only to merchants? |
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Definition
infringement and merchantability |
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Term
what type of goods does the merchantability warranty warrant for? |
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Definition
basically anything sold by a merchant, including food and drinks and the containers they come in |
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Term
What is an express warranty? |
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Definition
the seller just has to say something like it's a fact
seller doesn't have to be committing fraud, they can innocently made an express warranty that turns out to be false
not the same as "puffing"
sample or model ("i'll sell you one like this"- express warranty) |
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Term
Under the old rule, which warranties can be disclaimed? |
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Definition
all warranties could be disclaimed
if expressly disclaiming merchantability, had to use the word merchantability
you can impliedly disclaim the implied warranties by selling something "as is" (merchantability and fitness for particular purpose) |
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Term
who do warranties extend to? |
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Definition
family, household, guests in home |
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Term
federal consumer product warranties of law 1975 |
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Definition
-no disclaimer or implied warranties
-lemon problem- resolved in favor of consumer
-No ty-ins: only permitted if no cost for parts and labor |
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Term
What are compensatory damages? |
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Definition
foreseeable, regular damages
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Term
what are nominal damages? |
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Definition
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Term
are liquidated damages okay? |
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Definition
yes as long as:
1) at the time of K, the amt of possible damages from any later breach of contract is difficult to determine, and
2) at time of K, the K provision is a reasonable forecast of possible damages
NOTE: you either have valid liquidated damages clause or invalid penalty clause (don't mix these) |
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Term
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Definition
these are to punish the D and there are NO punitive damages in private contract law |
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Term
what are the buyer's remedies if the seller is in default and has send no goods to buyer |
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Definition
cover
(difference between the price to cover and K price)
K damages
(difference between fair market value and K price)
specific performance
(only if money damages are inadequate)
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Term
what are the buyer's remedies if the seller sent non-conforming goods? |
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Definition
REJECT:
single deliver:
unless curable w/in time period or reasonable time if seller believed buyer would accept
installment:
only allowed to reject if show substantial impairment to value of installment or the whole thing
ACCEPT:
knowingly:
difference between the goods as they are and the goods as they should have been
non-knowingly-revoke acceptance:
standard: substantial impairment
following the revocation, buyer can:
cover, get K damages or specific performance |
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Term
what are the seller's remedies if the buyer is insolvent? |
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Definition
this is not necessarily a breach, but seller can:
not deliver the goods
can stop the goods in transit
or
reclaim the goods w/in 10 days of delivery (buyer still has to have them though and if use this then this is only remedy)
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Term
what are the sellers remedies if the buyer wrongly rejects the goods |
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Definition
sell to another
(difference between K price and resale price)
contract damages
(difference between the fair market value and the contract price
NO specific performance
lost profits only IF volume seller
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Term
remedies available to buyer and seller? |
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Definition
right to demand assurances
anticipatory repudiation
incidential damages
consequential damages
mitigation |
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Term
right to demand assurances |
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Definition
requires a writing (to get assurances)
if no response w/in 30 days it becomes an anticipatory repudiation |
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Term
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Definition
unequivocal
executory promises on both sides |
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Term
what can the party do if the other anticipatorily repudiates? |
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Definition
can sue now
can sue when performance is due
can rescind the K |
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Term
who can get incidental damages? |
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Definition
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Term
who can get consequential damages? |
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Definition
innocent buyer, but not sellers |
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Term
which party has a duty to mitigate? |
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Definition
the non-breaching party- either buyer or seller |
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Term
in which ways may a buyer achieve better rights than their seller? |
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Definition
ACHIEVE
Accession- add value to property
Cash
Holder in Due Course
Intermingling
Entrustment
Voidable title
Estoppel |
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Term
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Definition
Owner entrusts goods with
Merchant, who sells to
buyer in ordinary course
*must be the owner, not a bailee, but can be the owners agent
*must be a merchant, not a casual seller
* buyer must be in ordinary court, not a creditor
*buyer will get title- harsh facts make no difference |
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Term
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Definition
intentional sale b/c of fraud
ex: seller sells to buyer because buyer said he was Brad Pitt. If that person sells to a BFP then BFP has title and seller is out of luck |
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Term
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Definition
legal bar to claiming title
allows you to act to your detriment- you are estopped from getting it back (buyer gets title) |
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