Mutual Assent (Common Law, UCC, CISG) Flashcards
This Convention applies to contracts of sale of goods between parties whose places of business are in different (contracting) States:
The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract.
Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.
CISG
Article 1
This Convention does not apply to sales:
of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use;
by auction;
on execution or otherwise by authority of law;
of stocks, shares, investment securities, negotiable instruments or money;
of ships, vessels, hovercraft or aircraft;
of electricity.
CISG
Article 2
Unless the context otherwise requires, this Article applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this Article impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.
UCC § 2-102:
In this Article unless the context otherwise requires “contract” and “agreement” are limited to those relating to the present or future sale of goods. “Contract for sale” includes both a present sale of goods and a contract to sell goods at a future time. A “sale” consists in the passing of title from the seller to the buyer for a price (Section 2-401). A “present sale” means a sale which is accomplished by the making of the contract.
Transaction at least equals “sale.”
UCC 2-106(1)
______ means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action. “Goods” also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (Section 2-107).
Goods UCC 2-105
Thing
Movable at time of identification to contract for sale
No money in which price is to be paid
Not investment securities
Not things (choses) in action
Includes unborn animals, growing crops, and certain things to be severed from realty
Goods Are
A material object regarded as the subject matter of a right, whether it is a material object or not.
Thing
An intangible, personal property right to bring an action to receive or recover a debt, money, or damages.
A legal claim; that is, something on which an “action” or lawsuit might be founded.
Various matters are considered choses in action, including rights to be paid under a contract, notes, other financial instruments, rights to bring an action to recover money damages, and rights to receive insurance proceeds.
Not things (choses) in action
A contract for the sale of minerals or the like (including oil and gas) or a structure or its materials to be removed from realty is a contract for the sale of goods within this Article if they are to be severed by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.
UCC 2-107. Goods to be Severed from Realty:
If the predominant purpose of the contract is for the sale of goods, then the UCC applies to a mixed (sales/services) contract.
While different jurisdictions use different ways of figuring what the “predominant purpose” is we will use a balancing test with the following factors.
Often the following factors are relevant:
Language of the contract
Nature of business of supplier
Costs of goods vs. services
The predominant purpose test
(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.
UCC 2-204. Formation in General
(1) Unless otherwise unambiguously indicated by the language or circumstances
(a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances;
(b) an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer.
UCC 2-206. Offer and Acceptance in K Formation
(1) Acceptance of goods occurs when the buyer
(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or
(b) fails to make an effective rejection (subsection (1) of Section 2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
(c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.
(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.
UCC 2-606. What Constitutes Acceptance of Goods.
