Contracts Flashcards
What does the UCC apply to?
Sale of goods
What does the common law apply to?
All other contracts (land, services, etc)
What are “goods?”
Movable, tangible property
What is a merchant?
Deals in goods of the kind, or holds himself out as having special skills/knowledge of goods
If a contract involves both goods and services, how do courts decide whether to apply UCC or common law?
Predominance Test - look to see whether goods or services is the predominant purpose (argue both on test)
Elements of contract
Offer, acceptance, consideration
Under the UCC does an offer need to be in any kind of form?
No, any manner or medium will suffice
If an acceptance varies from the offer’s terms, what happens at common law?
Mirror image rule: Acceptance must be mirror image of offer, otherwise it is a REJECTION and COUNTEROFFER.
If acceptance varies from offer under the UCC, what happens?
Any expression of acceptance will constitute acceptance even if terms are different or additional.
What is consideration?
Bargained-for exchange of legal detriment (promise to act or not to act)
What is an offer at common law and what are the requirements?
Manifestation of willingness to enter bargain.
1. Intent
2. Definite Terms (QTIPS) A.Quantity B.Time (can be missing) C.Identity D. Price E. Subject Matter
- Communicated to Offeree.
Under the UCC, what happens with ADDITIONAL terms?
“Battle of the forms” 2-207
- If party is NOT a merchant - any additional term is a PROPOSAL and will not become part of K unless other party agrees.
- If BOTH parties are merchants: additional term becomes part of K UNLESS:
A. Offer expressly limits acceptance to terms
B. Material alteration
C. If offeror objects in reasonable time
Under the UCC, what happens if acceptance includes DIFFERENT terms?
Majority v. Minority (x2) v. Common law
Majority (“Knock out”) - conflicting terms knock each other out, and court will gap-fill.
Minority (additional terms) - conflicting terms will be treated as additional terms
Minority 2 (fall out) - Offeror’s terms control
Common law - K is only agreed-upon terms, court can supply terms
What are the UCC gap-fillers?
Price - reasonable price at time of delivery
Place of Delivery - Buyer picks up from seller
Time for shipment - reasonable time
Time for payment - payment due upon receipt of goods
Under UCC, can acceptance be made by shipping goods? Conforming v. Non-conforming
Yes.
1. Shipping conforming = acceptance
2. Shipping non-conforming:
A. W/o acknowledgement: acceptance AND breach
B. W acknowledgement: rejection AND counteroffer
What is a contract without consideration called?
An illusory promise (not enforceable)
What are requirements and output contracts?
Can appear illusory but are not because of implied obligation of good faith to supply goods.
Requirements: Seller is exclusive source of ALL buyer’s requirements for certain goods for certain time.
Output: Buyer agrees to buy all of sellers output for certain good for certain time.
Do gifts have sufficient consideration?
No.
Can a contract be based on PAST consideration?
Generally no, except:
A. New promise to pay debt where statute of limitations has run
B. New promise to pay for benefits previously received
Will a preexisting legal obligation provide adequate consideration?
No.
What is promissory estoppel?
If a promise foreseeably induces reliance and is actually relied upon, it can be enforceable WITHOUT consideration:
- serves as substitute for consideration
- recovery limited to RELIANCE damages (i.e., no expectation damages)
What are the defenses to contract FORMATION?
- Statute of Frauds
- Misrepresentation
- Fraud
- Unconscionability
- Mistake