Term
|
Definition
1. Court needs to know context in which deal made because they can waive the unconscionable clause, or limit to change the result . They can modify the doctrine, not punitive, not designed to punish, just designed to limit the oppression from applying the agreement.
2.Parties will be afforded a reasonable opportunity to present evidence as to setting, purpose,and affect to aid court in making decision.
Ct has broad leeway or discretion in what to do / believe under the circumstances. ( some say substantive is enough to get out, but most courts do two steps) |
|
|
Term
|
Definition
CONSTRUCTIVE CONDITIONS & PERFECT TENDER RULE
perfect tender rule
IF K made and the seller tenders differently (a) can reject the whole. (b) can accept the whole (c) accept only conforming units and reject the rest.
*** BUT SUBJECT TO CONSTRUCTIVE CONDITION OF 2-508 |
|
|
Term
|
Definition
if time of performance is stoll not expired, you have an opp. to cure if send non fonforming goods but you still have time
can cure even if past the date of performance is due, if reasonable time beyond time for performance doesnt matter if non conf. tender costs less or more!! Doesn’t effect analysis, still have right to cure
Where the seller has reasonable means to believe it is acceptable! not designed for seller to dump undesirable goods on buyer because he know he has a chance to cure
Buyer must permit seller to have chance to fix the goods
contructive because in K it doesnt state this, the code gives the remedy and you can’t just walk away |
|
|
Term
|
Definition
| notice is a constructive condition precendent to bring suit for breach; if failure of constructive condition -- forfetiure |
|
|
Term
|
Definition
BREACH IN THE EVENT OF AN INSTALLMENT CONTRACT
(1.) you order something and it comes in bits and peices and you can do payments
(2) buyer can reject non-conforming goods if it substly impairs value and can not be cured OR non coformity is a defect in the required documents. but if defective does not fall in subsection 3 and seller gives adqequit assurance of cure than buyer has to accept it.
(3) if one part of the installment K substly impairs the value of the whole K, then there is a material breach of t he whole K, than there is a material breach of the whole. If they dont give notice in a reasonable time OR if only bringing suit for past or futuer statemetns its still reinstated (need to take present installemtn at issue) |
|
|
Term
|
Definition
you always must give NOTICE of the breach or nonconformity so can give other party chance to cure AND must give notice in a reasonable time from when you discover it ( in light of the circ. of the transaction specifically)
THEN (MOVE TO 2-603) |
|
|
Term
|
Definition
| (1) nust follow only reasonable instructions by buyer with respect to goods if agreement is absent this, you do not need to (2) buyer entitled to reimbursement for care(?) for (3) need good faith if not good faith can use conversion |
|
|
Term
|
Definition
(1) can’t tell you do not want goods then keep use as own because thats conversion
also whether nonconformity to cure in installment on only the first AND whether defect is curable because why need to try and cure nonconformity if not ever able to be cured!
(2) can reject installment if nonconf. in a material way and can not be cured ; * if it IS curable, no right of cancellation!!*
(3) the non. conf. in installment can effect one installment or entire thing, if it is buyers option if want to let cure and continue with K if breach is material |
|
|
Term
|
Definition
notice of breach is a constructive condition precedent to right of recovery! Give notice or be barred from any recovery!
>>>Factors to consider when condition in K and failure of condition -- if forfeiture or not: if the k is divisible or entire, past practice f parties ( okay if late) that gives reasonable belief that it is not a big deal, detriment to parties on both sides, know how late |
|
|
Term
|
Definition
requires demands in WRITING ( if evidence of prospective inability) have rights ( like in LL transactions) so MUST demand assurances in writing( so for goods transactions ..WRITING IS ADDED IN ADDITION TO THE CL**)
determined according to comm. standards ( look at it in book)
Straight forward word to word from book
same as Common Law, if demand assurances and you don’t give assurance within a reasonable time ( CODE ADDS-->) NOT EXCEEDING 30 days. |
|
|
Term
|
Definition
can do nothing and wait
can say going to wait for them to take back and perf. and at same time sue for anticipatory breach and tell not going to buy from anyone else and just wait for the party to take back their breach
proceed, while be sure that it does not aggravate damages because do have duty to mitigate dmages. May want to stop spending money because may not be able to recover it all! |
|
|
Term
|
Definition
if tell him going to treat repudiation as final, he can retract repudiation until aggrevied party cancels K OR materialy changed his position( in realiance of the repudiation) OR otherwise was told the repudiation was accepted as final ( no more dealing with it again!)
Does not have to retract repudiation in writing, has to be any method clearly indicating
retraction reinstates repudiating party’s rights under the K with du excuse and allowance to the aggrieved party for any delay caused by the repudiation |
|
|
Term
|
Definition
| If wealthy but failed to pay debts (B) wealthy but $ is not liquid, so checks bounce as come (c) bankrupt ct. says you are insolvent |
|
|
Term
|
Definition
Doctrine of Impossibility( Same for impractibility and frustration)
a. if you dont deliver or perf. part of agreement because of unforseeable occurence then you can be excused from performing. ** UCC here adds to common law that INCLUDES government regulation even if it turns out to be a bad regulation
b. where the unforseeable occurence only affects part of the sellers obligation he must perf. to extent that he can. If he has obligation to perf. to several people he must allocate in fair and reasonbly, can take care of himself and his customers
c. must notify buyer seasonably of delay or non delivery and when allocation required under (b), notify of the estimated quoted this allocation has made availiable for the buyer(him). |
|
|
Term
|
Definition
1.if impossible , if agreed manner of delivery is impracticable but commercially reasonable substitute availiable , such substitute performance must be tendered and accepted
2. if agreed means or manner of $ fails because dominant gov. or for gov. regulation, seller may withold or stop delivery unless buyer provides mean or manner of $ which is commercially a substite equivalent. IF delivery already been taken, payment by the means or manner provided by the regulation discharges buyers obligation unless the regulation is discriminatory, oppressive or predatory! |
|
|
Term
|
Definition
| When buyer notified of a mat or indefinite delay or allocation, buyer can (a) say no and discharge any unexcuted portion of the K or (b) nidufy the K by agreeing to take his quota in substitution. |
|
|
Term
|
Definition
Identified goods
can only apply if these goods are identified to the K ;
Crops had not been planted at time of K, are they still identified?no way of because are only identified if:
(a) if exists or id indentitied
(b) ship, marked or designated
(c) crops ongoing with in 12mths or when to be harvested; |
|
|
