Contracts Flashcards
Place for Delivery of Goods
Unless otherwise agreed,
1. Seller’s place of business (residence if doesn’t have one).
2. If goods known to be elsewhere at time of contracting, that location.
Course of Performance
Sequence of conduct between parties to a particular transaction that exists if:
1. Transaction involves repeated occasions for performance by party; AND
2. Other party, with knowledge of nature of performance and opportunity to object, accepts performance or acquiesces without objection.
Can alter default delivery of goods rules.
Course of Dealing
Sequence of conduct concerning previous transactions between parties.
Can alter default delivery of goods rules.
Usage of Trade
Any practice/method of dealing used so regularly in place, vocation, or trade as to justify expectation it will be observed with respect to transaction in question.
Can alter default delivery of goods rules.
Implied Warranty of Fitness for Particular Purpose
Seller knows/has reason to know of Buyer’s particular purpose
AND
Buyer relies on Seller’s skill/judgment to select/furnish suitable goods.
If not fit for purpose, Seller breached.
Disclaim Implied Warranty of Fitness for Particular Purpose
- Conspicuous writing
- “As is” language
- Waiver if certain defects can be reasonably discovered on inspection.
OR - Course of dealing or performance, or usage of trade
Gratuitous Assignment
Can be revoked unless:
- Assignor delivers document to Assignee symbolizing rights assigned
- Assignee detrimentally relied on assignment
- Obligor performs or pays Assignee (payment or performance is irrevocable)
OR
- Assignor puts assignment in writing and delivers to Assignee
Multiple Assignments
Gratuitous assignees = last assignee prevails (unless irrevocable)
Assignment with compensation = first assignee prevails unless:
- Latter has no notice of earlier assignment
AND
- Latter is first to (1) be paid, (2) obtain judgment, (3) obtains new contract from obligor by notation (agreement of all parties), OR (4) there is indicia of ownership.
Limits on consequential damages
May be limited or excluded by agreement unless limitation/exclusion is unconscionable.
Punitive damages
Punish wrong-doing party
Generally not available for breach; may be awarded if corresponding tort claim that allows such damages (e.g. fraud).
Incidental Damages
Any commercially reasonable costs incurred resulting from breach of contract.
Replevy by unpaid seller
Seller may repossess if:
- Buyer was insolvent when received goods;
- Seller makes demand w/in 10 days; and
- Goods not sold to good faith purchaser for value.
If misrepresentation of solvency in writing w/in 3 months before delivery, demand w/in 10 days no longer applies.
UCC Buyer’s Remedies
If:
- never received goods;
- rightfully rejected non-conforming goods; or
- justifiably revoked acceptance
Then may:
- cancel;
- refund (even if buyer didn’t cancel K);
- get cover OR market damages; and
- get incidental and consequential damages.
Damages for Contractor’s Incomplete or Defective Performance
Usual damages: expectation damages (reasonable cost of replacement or completion)
If cost of completion is wasteful, may apply waste doctrine.
Can party recover expectation and restitution damages?
No.