Round 2 Lecture 8 Flashcards
sale of goods
- the most common contract
- article 2 UCC (also applies to mixed contracts-were the services necessary because the buyer wanted the goods?)
who is a merchant?
3 tiers, the dealer, the professional, the merchant by agency
tier 2 (the professional)
- a person who by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved
tier 1 (the dealer)
a person who deals in goods of the kind
tier 3 (the merchant by agency)
a person to whom the knowledge or skill referred to above is attributed by his employment of any person who by his occupation holds himself as having such knowledge or skill
good faith
probably does not extend to pre-contract shenanigans because other remedies may be available, for example a claim of misrepresentation., duress, or mistake
-in WI its inherent in all contracts
obligation of good faith
every contract or duty within this act imposes an obligation of good faith in its performance or enforcement
under revised UCC
definition the same for both (the merchant standard applies to both merchants and non merchants
procedural unconscionability
the manner in which the contract was formed is unconscionable-unfairness in the formation of the contract which may include a variety of inadequacies or weaknesses such as age, lit, lack of sophistication, etc
substantive unconscionability
a term or condition of the contract is unconscionable-harsh unfair or disproportionately one-sided terms
unconscionability
not intended to create an affirmative cause of action and a basis for recovery of damages (can’t sue) but rather unconscionability is a defense to enforceability of a contract or its terms
-determined by the court not the jury
which form of unconscionability is required?
some courts (including WI) require both to have a right to attack the enforceability of the contract
seasonably
when an action is taken at or within the time agreed or if no time is agreed at or within a reasonable time
reasonableness as to time
a reasonable time for taking action depends on the nature, purpose, and circumstances of such action
a person has notice of a fact when
- he has actual knowledge of it
- he has received a notice or notification of it
- from all the facts and circumstances known to him at the time in question he has reason to know that it exists
expansion of commercial practices
- course of dealing - prior dealings btw the parties
- usage of trade - business customs or practices
- course of performance - prior performance by a party in an installment contract
what goods can be sold?
- the goods must be existing
- the goods must be identified
the goods must be existing
you can’t sell something that doesn’t exist-but you can enterr into a contract to sell something that will exist in the future
the goods must be identified
generally occurs at the time the contract is made-more than merely describing the goods-ID is physically associating specific goods with a specific sale of goods contract
effect of id having occurred
special property right created in the buyer:
- buyer has insurable interest
- availability of certain remedies to the buyer in the event seller refuses to deliver the goods
- buyers right to inspect the goods is triggered
trial sales
whenever buyer has contracted for the privilege to return the goods even though they are conforming
sale or return contract
- regarded as a completed sale subject to the return -policy
- I’ll sell the goods to my own customers or I’ll return them to my seller
sale on approval
- buyer is treated as a bailee until buyer accepts the goods
- the sale is completed if I approve the goods because they serve my purpose
