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Virginia Bar > Advanced Sales > Flashcards

Advanced Sales Flashcards

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1
Q

When is a contract governed by the common law?

A

If it concerns the sale of real property or services

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2
Q

Who is a merchant

A

Someone who regularly deals in the types of goods at issue

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3
Q

When is a structure governed by the UCC?

A

When it will be severed from the land

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4
Q

Are patents and intellectual property governed by the UCC

A

No

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5
Q

When can a contract be governed by both the UCC and common law

A

If it is divisible and the provision for goods can be severed from the provision on land/services

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6
Q

How specific must an offer be under the UCC?

A

Subject, quantity, and parties.

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7
Q

If a contract does not name the price, what will the court use?

A

A reasonable price.

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8
Q

What is an output contract?

A

An output contract is when a seller agrees to provide a buyer with everything they produce. Buyer is free to purchase from others, but the seller cannot sell to others.

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9
Q

What is a requirements contract?

A

A requirements contract binds a buyer to obtain all of their needed goods from a seller.

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10
Q

What are the elements of a firm offer

A

A written offer from a merchant, making a promise not to revoke, signed by the offeror. The option cannot exceed 90 days.

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11
Q

When does an offer expire automatically?

A

When a reasonable amount of time has passed.

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12
Q

What is an accommodation

A

Both parties understand the seller is supplying nonconforming goods that do not constitute acceptance.

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13
Q

When does a new term become a part of the original contract

A

(1) both parties are merchants (2) new term does not materially alter the deal (3) original did not limit itself to its terms (4) no objection

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14
Q

Is an individual bid an offer or acceptance?

A

A bid is an offer

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15
Q

When does acceptance occur at an auction

A

When the hammer fallsW

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16
Q

What can auctioneer do if a bid is made at the moment the hammer falls

A

(1) reopen bidding or (2) declare the auction final

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17
Q

No reserve auction

A

Seller cannot withdraw item after a bid has been received. Bidders can retract their offers as long as the auction is not over.

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18
Q

Modifications

A

Modifications are binding if they are made in good faith, there is no pre-existing duty (unlike common law).

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19
Q

What contract defenses are there?

A

Misunderstanding, incapacity, mistake, fraud/misrepresentation, duress, illegality, unconscionability (procedural or substantive such that no reasonable person would agree to it)

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20
Q

What does the Statute of Frauds (SoF) apply to?

A

Marriage, suretyship, one year contracts, goods over $500, real estate contracts

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21
Q

What satisfies the SoF

A

Writing signed by the party against whom the contract is being enforced or part performance

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22
Q

What is an exception to SoF

A

Custom goods, judicial admission, failure to object to a confirming memo within 10 days when both parties are merchants.

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23
Q

How can you modify a deal governed by the SoF?

A

If the contract WITH the modification would fall under the SoF, then the modification must also satisfy SoF. If the modification would take the contract outside of the SoF, then the it does not need to satisfy the SoF.

24
Q

What is the parol evidence rule?

A

If the parties have reduced their agreement to a final writing, earlier statements drop out.

25
Q

Does the parol evidence rule apply to later conversations?

A

No.

26
Q

Does the parol evidence rule apply to earlier written statements?

A

Yes

27
Q

What is complete integration?

A

The final writing includes all terms of the agreement.

28
Q

What are the four types of warranties?

A

Warranty of title (transfer is rightful and title is good), express warranty (sample, model), implied warranty of merchantability (fit for ordinary commercial purposes), implied warranty of fitness for a particular purpose (buyer is relying on seller’s expertise, does not need to be a merchant).

29
Q

How does the UCC interpret the PER

A

The UCC presumes that the contract is only partially integrated, unless the parties would have certainly included the disputed term.

30
Q

What is perfect tender?

A

Perfect goods and perfect delivery.

31
Q

How can a buyer reject good

A

The buyer must (1) notify seller within a reasonable time (2) notify seller of the particular defect and (3) must hold the goods for a reasonable time.

32
Q

What if seller does not respond to buyer’s rejection?

A

(1) Store the goods on the seller’s account (2) ship the goods back (3) sell the goods.

33
Q

How can a buyer revoke acceptance of the goods?

A

Buyer cannot substantially change the goods and then revoke, must give notice.

34
Q

What is the right to cure?

A

Seller has a right to cure if they had a reasonable ground to think the goods would suffice.

35
Q

What must the seller do under a shipment contract

A

(1) get the goods to a common carrier (2) make arrangements for delivery (3) notify the buyer

36
Q

What must the seller do under a destination contract?

A

Seller must deliver the goods to the buyer’s business

37
Q

What do you consider for risk of loss

A

(1) have the parties dealt with the risk of loss in their contract (2) has either party breached, if so the breaching party bears the risk of loss (3) are the goods being shipped? if a shipment contract, then the risk rests with the buyer; if it is a destination contract, then the risk rests with the seller (4) is the seller a merchant, stays with the seller

38
Q

When does a seller have an insurable interest

A

Title or security interest

39
Q

When does a buyer have an insurable interest

A

When the goods are identified and the buyer has paid some of the purchase price

40
Q

When is payment due

A

At the time and place where they will receive the goods

41
Q

What is shipping under reservation

A

Seller can hold the goods until the buyer pays

42
Q

What is the right to inspect

A

The buyer can inspect goods before tendering payment, unless the contract specifies payment on delivery

43
Q

What is an impracticable contract?

A

Can only be performed with great difficulty

44
Q

What happens if goods are destroyed

A

If the risk of loss has passed to the buyer, they must pay. If goods are damaged but not destroyed, the contract can be voided.

45
Q

What is the remedy for anticipatory repudiation

A

Can stop performance when repudiation is clear and unequivocal. If performance is completed, cannot accelerate payment. Can ignore repudiation and continue performance.

46
Q

Can a party retract repudiation

A

Yes, as long as the other party has not initiated a lawsuit or acted in reliance

47
Q

What is the goal of expectation damages

A

Expectation damages aim to put the party where they would have been had the contract been performed in full.

48
Q

What is standard for expectation

A

Expectation damages must be reasonably certain

49
Q

Are unforeseen consequential damages recoverable?

A

Generally no, unless the breaching party should have known about the unique circumstances.

50
Q

What are lost volume profits

A

If the seller is a retailer who sells the product all the time, they can obtain LVP.

51
Q

How are LVP calculated

A

Cost of contract price minus the cost to purchase from the manufacturer

52
Q

Are liquidated damages okay?

A

Yes, as long as the amount is not a penalty because they are unreasonably large.

53
Q

What is replevin

A

Buyer can recover specific goods that cannot be obtained elsewhere or where they have made partial payment

54
Q

What is a right of reclamation

A

Right of an unpaid seller to reclaim goods when the buyer is insolvent at the time of purchase and demands the goods within 10 days/reasonable amount of time if the buyer misrepresented insolvency, buyer must still be in possession of goods

55
Q
A

Virginia Bar (41 decks)

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