Ag - Ucc Article 2

Front 1

Goods

Back 1

Tangible, movable Items

Front 2

Hybrid Transactions

Back 2

1) Predominate Purpose (majority)
2) Gravamen Test (minority)

Front 3

Predominate Purpose Test

Back 3

predominate purpose is goods, then the whole thing is under article 2.

Front 4

Gravamen Test

Back 4

To the extent hybrid transaction is goods-related, article 2 applies. To the extent it's services, Common Law applies

Front 5

1-201(37) – Signed

Back 5

Using any symbol executed or adopted w/ present intention to adopt or accept a writing.
-Writing Printing, typewriting, or any other intentional reduction to tangible form
-Complete signature is not necessary

Front 6

1-201(19)(20) - Good Faith

Back 6

Old Article 1: Need subjective good faith, for merchants - also need objective reasonableness.
New Article 1: Need both

Front 7

1-305 - Remedies to Be Liberally Administered

Back 7

-Remedies put the aggrieved party in as good a position as if the other party had fully performed

Front 8

2-104 (1) - Merchant

see comment 2

Back 8

Someone who deals in goods of the kind, or by occupation holds himself out as having knowledge peculiar to the goods involved in the transaction or to whom such knowledge may be attributed by his employment of an agent/intermediary who by his occupation holds himself out as having such knowledge/skill.

Front 9

2-201 - Formal Requirements; Statute of Frauds

Back 9

Need writing for
1. sale of goods $500 or more
2. Between merchants if w/in reasonable time, written confirmation is sent and received by party who has reason to know its contents, it satisfies writing unless party objects within 10 days after receipt.
3. If goods are specially manufactured & can't be sold to anyone else, then no writing required.
4. If there is admission in testimony that contract exists, then no writing needed for the quantity of goods admitted to.
5. For goods that have been accepted, paid for and accepted, no writing required.
6. Estoppel under 1-103: fraud, estoppel, misrepresentation, duress, coercion, mistake, bankruptcy

Front 10

2-202 parol evidence

(and exceptions; 1-303 on course of performance; course of dealing, & usage of trade and 1-304 on good faith as implied term).

Back 10

.

Front 11

2-204(3) - Contract Formation in General

Back 11

2-204(3) - Contract Formation in General
1. May be made in any manner to show agreement -conduct of parties.
2. Even if the moment of its making is undetermined.
3. Doesn't fail for indefiniteness even though 1 or more terms left out if parties intended to make a contract & there's reasonably certain basis for giving an appropriate remedy.

Front 12

2-205 - Firm Offer

Back 12

Offer by merchant to buy/sell goods in signed writing can't revoke for lack of consideration during stated time or for 3 months. If it's on the offeree's form, it must be separately signed by offeror

Front 13

2-206 - Offer & Acceptance in Formation of Contract

Back 13

-Unless unambiguously indicated by language/circumstances - offer to make contract construed as inviting acceptance by prompt promise to ship or shipment of conforming/nonconforming goods.
-Shipment of nonconforming goods NOT acceptance if seller notifies buyer that shipment is accommodation.
-Where beginning of performance is mode of acceptance, offeror who isn't notified of acceptance in reasonable time may treat the offer as having lapsed before acceptance

Front 14

2-207 - Additional/Different Tems in Acceptance or Confirmation
Battle of the Forms

Back 14

-If there's a proviso where seller says acceptance is conditional upon acceptance of the new/different terms & performs anyway - not a contract: knockout rule. Terms of contract are the ones where parties agree plus gap fillers.
-If it's a contract & both merchants: additional terms become part of contract unless it's materially altered or notification of objection has been given & received.
If not both merchants: need express acceptance/dissent to new terms.

Front 15

2-209 - Modification, Rescission, & Waiver

2-209(1) no consideration needed for modification

Back 15

1. Needs no consideration to be binding.
2. Exclusion of modification clause cannot be modified/rescinded except by signed writing, except as between merchants such requirement on a form supplied by the merchant must be separately signed by other party.
3. Statute of frauds must be satisfied if K as modified is w/in its provisions. Does not include unilateral termination/cancellation

Front 16

3-301 Basic Obligations of Buyer and Seller

(cross 2-511(1)(2))

Back 16

.

Front 17

3-302 Rule of Unconscionability

Back 17

.

Front 18

2-305 -Open Price Terms

Back 18

Price is at reasonable price @ the time for delivery if not settled if: Nothing's said as to price or Price is left to be agreed upon by parties and they don't agree or
Price is fixed in terms of agreed standard

Front 19

2-306(1) Output and Requirements Contracts

Back 19

.

Front 20

2-308 - Absence of Specified Place for Delivery

[not covered in class]

Back 20

Unless otherwise agreed:
1. Seller's place of business or residence
2. Exception: if at the time of contracting, goods are known by parties to be somewhere else, that is the place of delivery

Front 21

2-309 - Absence of Specific Time Provisions; Notice of Termination

2-309(1) absence of time; inject "reasonable time" as the term.

Back 21

1. Time of shipment/delivery: reasonable time.
2. For Ks with successive performances, indefinite duration - valid for reasonable time but unless otherwise agreed may be terminated at any time by either party
3. Termination by 1 party except on agreed event requires reasonable notification. agreement dispensing w/ notification is invalid if it's unconscionable.

Front 22

2-310 - Open Time for Payment

[not covered in class]

Back 22

Unless otherwise agreed Payment: due @ time & place at which buyer is to receive goods

Front 23

2-311 - Options & Cooperation Respecting Performance

[not covered in class]

Back 23

(Agreeing to Agree) Agreement otherwise definite to be contract: not invalid by leaving out particulars of performance to be specified by one of the parties.
Must be made in good faith, commercially reasonable.
1. Assortment of goods: buyer's option
2. Shipping arrangements: Seller's option
3. If specification/cooperation isn't made seasonably for other party to perform, other party can:
-seek remedy
-delay performance
-can perform in reasonable manner (not wait)
-After the time for his own performance, treat it as a breach.

Front 24

2-312 Warranty of Title and the Means of Disclaiming

Back 24

.

Front 25

2-313 - Express Warranties

Back 25

Any affirmation of fact/promise made by S to B which relates to goods & becomes basis of bargin.
-description of goods
-sample
-model
Burden of proof on S that affirmation was not made.
Cannot disclaim.

Front 26

2-314 - Implied Warranty of Merchantability

Back 26

-Warranty that are goods are merchantable: fit for ordinary purpose of which such goods are used.
-Seller must be merchant of goods of the kind.
-Created by selling the goods--always given unless disclaimed.
-Does not have to plead/prove reliance.
-For goods except serving for value of food/drink to be consumed either on premises or elsewhere

Front 27

2-315 - Warranty of Fitness For Particular Purpose

Back 27

-Seller does not have to be merchant
-If seller has reason to know particular purpose for which goods are required and buyer is relying on seller's judgment to select suitable goods.
-Buyer must plead/prove reliance:
-seller had reason to know buyer's purpose
-know that buyer was relying on seller's skill/judgment
-buyer actually relied on seller's skill or judgment

Front 28

2-316 - Disclaiming Warranties of Quality

(cross reference 2-719)

(In MA law disclaimers in a K with a consumer are void)

Back 28

Express: if you create inconsistency, it's held against you.
Implied Merchantability: must have word merchantability, & be conspicuous.
Implied Fitness For Particular Purpose: Must be in Writing, conspicuous.
Implied Limitations: words like "as is" implicitly excludes implied warranties.
Can be excluded/modified by course of dealing, course of performance, usage of trade.

Front 29

2-318 Alternative to privity

(cross MA 2-318 more expansive)

Back 29

-Seller must get goods to carrier in reasonable way

-Deliver/tender documents to enable buyer to get the goods

-Promptly notify the Buyer of shipment

Front 30

2-319 Shipment Terms

(cross 2-509(1) Risk of Loss Rules)

Back 30

.

Front 31

2-320 CIF and C &F terms - deemed Shipment Ks

Back 31

1. If it's a shipment contract FOB place of shipment, risk of loss passes to buyer when goods are duly delivered to carrier.
-If it's a Destination contract FOB destination, risk of loss passes to buyer when the goods are tendered
2. If goods are in possession of bailee, risk of loss passes to buyer when he receives document of title or directions to deliver, when bailee acknowledges buyers rights to the goods
3. For non-carrier delivery, if seller is a merchant, risk of loss passes to buyer on receipt of goods. If seller is not a merchant, risk of loss passes to buyer on tender of delivery

Front 32

Effect of Breach on Risk of Loss

Seller's Breach

[Revise/review this rule]

Front 33

2-403 Bailment/especially entrustment

(cross 1-201(b)(9) and (2-312).

Back 33

.

Front 34

Effect of Breach on Risk of Loss

Seller's Breach

[Revise/review this rule]

Back 34

1. If buyer has right to reject, risk of loss shifts to seller until cure or acceptance
2. If buyer rightfully revokes, he can treat risk of loss having been on seller the whole time. If buyer is insured, seller is off the hook. Seller is responsible for deficiency in buyer's insurance.

Front 35

2-503 - Seller's Obligation as to Tender of Delivery

Back 35

-Seller holds goods, makes them available to buyer, & notifies him.

-Must be at reasonable time & must be made available to buyer for reasonable period of time.

-Buyer must furnish reasonable facilities suited for receipt of goods.

Front 36

2-601 - Buyer's Rights on Improper Delivery

PERFECT TENDER RULE

Back 36

.

Front 37

2-602 - Rules for Rejection; Buyer's Obligation of Reasonable Care.

(Manner & Effect of Rightful Rejection)

Back 37

-Seller holds goods, makes them available to buyer, & notifies him.

-Must be at reasonable time & must be made available to buyer for reasonable period of time.

-Buyer must furnish reasonable facilities suited for receipt of goods.

Front 38

2-605 - Waiver of Buyer's Objections by Failure to Particularize

Back 38

-Must notify seller of curable defects detectable by reasonable inspection.
-If he doesn't or if he waives the defects, then he waives right to rejection or to establish breach.

[clarify second point]

Front 39

2-606 - Acceptance of Goods Occurs when B:

Back 39

a. After opportunity to inspect, B indicates to S that goods are conforming OR that B will take/keep them in spite of non-conformity

b. Fails to make effective rejection (see 2-602)

c. Acts inconsistently with seller's ownership

2-606(2) Acceptance of any part of a commercial unit is acceptance of the entire unit

Front 40

2-607 (1) (2) (3) (4) - Effect of Acceptance

The Allocation of Obligations and Rights when Acceptance occurs; especially 2-607(3)(a) B obligation to give notice (use "breach") Cross MA 2-318 which supplements notice rule in some cases)

[review]

Back 40

If the buyer doesn't object to problem with the goods, he waives the right to reject.
In the revocation phase the Buyer has the Burden of Proof and must communicate notice of the breach and list problems to the Seller.
1.Keep the goods and sue for damages of the value promised minus the value received
2.Continue with Revocation – buyer has burden of proof and must prove substantial impairment (subjective impairment – recognizes the uniqueness of the impairment to the buyer.)

Front 41

2-510 - Effect of Breach on Risk of Loss
Buyer's Breach

Back 41

1. If buyer accepted goods, buyer already had risk of loss @ time of breach--buyer is responsible.
2. If buyer breaches before risk of loss passes to him, buyer is responsible for deficiency in seller's insurance

Front 42

2-610 - Anticipatory Repudiation

(cross 2-713)

Back 42

-Can reject the whole, accept the whole, or accept any commercial unit/units and reject the rest if goods fail in any respect to conform to the contract.

Front 43

2-602 - Rules for Rejection; Buyer's Obligation of Reasonable Care.

(Manner & Effect of Rightful Rejection)

Back 43

1. Until repudiating party's next performance is due, he can retract unless aggrieved party has since repudiation canceled, materially changed his position, or said that repudiation is final.
2. Retraction - can be any way that clearly indicates to the aggrieved party that you intend to perform, but must include assurance demanded (2-609)
3. Retraction reinstates the repudiating party's rights under the contract.

Front 44

2-604 - Buyers Options as to salvage etc. after Rejections

(B options to salvage post rejections)

Back 44

-

[Complete]

-

-such action is not acceptance or conversion

Front 45

2-605 - Waiver of Buyer's Objections by Failure to Particularize

Back 45

-Must notify seller of curable defects detectable by reasonable inspection.
-If he doesn't or if he waives the defects, then he waives right to rejection or to establish breach.

[clarify second point]

Front 46

2-606 - Acceptance of Goods Occurs when B:

Back 46

a. After opportunity to inspect, B indicates to S that goods are conforming OR that B will take/keep them in spite of non-conformity

b. Fails to make effective rejection (see 2-602)

c. Acts inconsistently with seller's ownership

2-606(2) Acceptance of any part of a commercial unit is acceptance of the entire unit

Front 47

2-607 (1) (2) (3) (4) - Effect of Acceptance

The Allocation of Obligations and Rights when Acceptance occurs; especially 2-607(3)(a) B obligation to give notice (use "breach") Cross MA 2-318 which supplements notice rule in some cases)

[review]

Back 47

If the buyer doesn't object to problem with the goods, he waives the right to reject.
In the revocation phase the Buyer has the Burden of Proof and must communicate notice of the breach and list problems to the Seller.
1.Keep the goods and sue for damages of the value promised minus the value received
2.Continue with Revocation – buyer has burden of proof and must prove substantial impairment (subjective impairment – recognizes the uniqueness of the impairment to the buyer.)

Front 48

2-607(3)(a) -- Buyer Obligation to give Notice

(cross MA 2-318 which supplements notice rule in some cases)

Back 48

2-607(3) Where a tender has been accepted

(a) the buyer must within a Reasonable Time after he discovers or should have discovered the breach NOTIFY the Seller of Breach OR be barred from any remedy.

3 1/2 months as a matter of law is too long for a commercial Buyer to provide notice.

Must use the word "breach" in notification

Front 49

2-608 - Revocation of Acceptance in Whole or in Part

Back 49

-Can revoke lot or unit whose non-conformity substantially impairs its value to him if seller said there would be cure and there was none, latent defect.
-REvocation must occur w/in reasonable time after buyer discovers/should've discovered ground for it & before any substantial change in condition of the goods not caused by their own defects. Not effective until buyer notifies seller.
-Has same rights/duties to the goods as if he rejected them.

Front 50

2-609 - Right to Adequate Assurance of Performance

Back 50

1. When reasonable grounds for insecurity arises regarding performance of either party, the other may in writing demand adequate assurance of performance and until he gets it, may if commercially reasonable, suspend his own performance.
2. Between merchants, reasonableness of grounds for insecurity & adequacy of assurance - according to commercial standards
3. Can still demand assurance for future performance even if you accept improper delivery/payment
4. After receipt of justified demand, failure to give assurances w/in reasonable time not exceeding 30 days, then you've repudiated the contract.

Front 51

2-610 - Anticipatory Repudiation

(cross 2-713)

Back 51

-When either party repudiates performance not yet due, the loss of which will substantially impair the value of the contract to the other, aggrieved party may:
1. for commercially reasonable time wait for performance
2. resort to remedy for breach even if he said he'd wait for performance
3. suspend his own performance or identify goods to the contract or try to salvage unfinished goods.

Front 52

2-611 - Retraction of Anticipatory Repudiation

Back 52

1. Until repudiating party's next performance is due, he can retract unless aggrieved party has since repudiation canceled, materially changed his position, or said that repudiation is final.
2. Retraction - can be any way that clearly indicates to the aggrieved party that you intend to perform, but must include assurance demanded (2-609)
3. Retraction reinstates the repudiating party's rights under the contract.

Front 53

2-612 - Installment Contract; Breach

(contrast with Perfect tender rule 2-601)

Back 53

.

Front 54

2-612 - Installment Contract; Breach

(contrast with Perfect tender rule 2-601)

Back 54

-Installment contract: requires/authorizes delivery of goods in separate lots to be separately accepted
-Can reject any non-conforming installment if there's substantial impairment of value of that installment & can't be cured.
-If seller gives assurance of cure, buyer must accept the installment.
-If non-conformity with respect to 1 or more installments substantially impairs value of the whole contract--then there's breach of the whole.
-Aggrieved party reinstates contract if he accepts non-conforming installment w/out seasonably notifying of cancellation or brings an action for only past installments, or demands performance as to future installments.

Front 55

2-613 Casualty to identified goods

An excuse for a Seller; * Taylor v. Caldwell

Front 56

(2-613)

Taylor v. Caldwell - Doctrine of Impossibility

Back 56

A party’s duty, under a contract is discharged if performance of the contact involves particular goods, which without fault of either party are destroyed, rendering performance impossible.

Front 57

2-615 Impracticability as an excuse for Seller

ELEMENTS OF PROOF

(remember frustration of Purpose 1-103(b) as in

Chase Precast v. John Paonessa)

Back 57

(1) Occurrence/contingency

(2) Non-occurrence of whichwas a basic assumption. (a)A rise in the price ofmaterials is not a basic assumption on which contracts are made; this is aforeseeable occurrence

(3) Occurrence of which makesperformance impracticable. (a) Reduction in profits doesnot rise to the level of commercial impracticability

(4) Evaluation of whetherthere was an allocation of this risk between the parties

If impracticability isproven, the breach “goes away” and the contract can be ended.

Front 58

Frustration of Purpose

Chase Precast v. John Paonessa

Back 58

R: When an event neither anticipated nor caused by either party, the risk of which was not allocated by the contract, destroys the object or purpose of the contract, thus destroying the value of performance, the parties are excused from further performance.

Front 59

2-316A in MA - non uniform amendment for

Consumer Sales

Back 59

-Withhold delivery
-Stop delivery
proceed under next section respecting goods unidentified to the contract
-Resell & recover damages
-Recover damages for Non-acceptance or the Price
-Cancel

Front 60

2-318 Alternative to privity

(cross MA 2-318 more expansive)

Back 60

-Must be in good faith, commercially reasonable resale.
-If it's a private sale, must give buyer reasonable notification of intention to sell
-Can recover difference between resale price & contract price minus expenses saved by buyer's breach plus incidental damages

Front 61

2-319 Shipment Terms

(cross 2-509(1) Risk of Loss Rules)

Back 61

commercially reasonable charges, expenses, commissions from stopping delivery, transportation, care, custody of goods after buyer's breach in connection with return or resale of goods or otherwise resulting from breach.

Front 62

2-320 CIF and C &F terms - deemed Shipment Ks

Back 62

-When buyer doesn't pay & resale is impracticable, or goods are lost/damaged after risk of loss passes to buyer, he can sue for the price of the goods.
-Must hold for buyer any goods from the contract still in his control.
-If he resells, he has to credit net proceeds to the buyer

Front 63

2-325(1)(2) B's obligations when letter of credit is the payment device

Back 63

.

Front 64

2-403 Bailment/especially entrustment

(cross 1-201(b)(9) and (2-312).

Back 64

-Recover damages for non-delivery
-Recover identified goods
-Specific Performance
-Incidental & Consequential Damages

On rejection/revocation, buyer has security interest in goods in his possession/control for any payments made on their price & expense reasonably incurred in their inspection, receipt, transportation, care, custody, and may hold goods & resell them like an aggrieved seller.

Front 65

2-501 identification to the K for Sale

Back 65

1. Recover difference between market price @ time & place for tender & the unpaid contract price plus incidental damages minus expenses saved by buyer's breach.
2. If inadequate (could've sold 2 but only sold 1), then recover lost profits seller would've made from full performance of buyer plus incidental damages.

Front 66

2-603 - Merchant Buyer's Special Duties Duties Post-Rejection

Back 66

.

Front 67

2-604 - Buyers Options as to salvage etc. after Rejections

(B options to salvage post rejections)

Back 67

-

[Complete]

-

-such action is not acceptance or conversion

Front 68

2-607(3)(a) -- Buyer Obligation to give Notice

(cross MA 2-318 which supplements notice rule in some cases)

Back 68

2-607(3) Where a tender has been accepted

(a) the buyer must within a Reasonable Time after he discovers or should have discovered the breach NOTIFY the Seller of Breach OR be barred from any remedy.

3 1/2 months as a matter of law is too long for a commercial Buyer to provide notice.

Must use the word "breach" in notification

Front 69

2-613

Taylor v. Caldwell - Doctrine of Impossibility

Back 69

A party’s duty, under a contract is discharged if performance of the contact involves particular goods, which without fault of either party are destroyed, rendering performance impossible.

Front 70

2-613 Casualty to identified goods

(An excuse for a Seller; * Taylor v. Caldwell)

Back 70

Doctrine of Impossibility - an Excuse - an

act of God (fire, flood, lightning, earthquake)

In Taylor v Caldwell, the hall was destroyed by fire

The impossibility of performance arising from perishing of the person or thing shall excuse performance.

Front 71

2-615 Impracticability as an excuse for Seller

remember frustration of Purpose 1-103(b) as in

Chase Precast v. John Paonessa

Back 71

1. Damages may be liquidated only at amt. reasonable in light of anticipated or actual harm caused by breach, difficulties of proof of loss, inconvenience/nonfeasibility of otherwise obtaining adequate remedy. Term fixing unreasonably large liquidated damages is void as a penalty.
2. Where seller witholds delivery because buyer's breach, buyer is entitled to restitution of amt. by which the sum of his payment exceeds the amt. to which the seller is entitled by virtue of terms liquidating the seller's damages OR if no terms, 20% of value of total performance for which buyer is obligated OR $500, whichever is smaller.
3. Buyer's right to restitution under (2) is subjection to offset to the extent that seller establishes right to recover other damages & amt. or value of any benefits received by buyer by reason of the contract.
4. If seller received payment for resale, proceeds of resale are treated as payments under (2).

Front 72

Frustration of Purpose

Chase Precast v. John Paonessa

Back 72

R: When an event neither anticipated nor caused by either party, the risk of which was not allocated by the contract, destroys the object or purpose of the contract, thus destroying the value of performance, the parties are excused from further performance.

Front 73

2-703 - SELLER's REMEDIES General Rule

(2-703 thru 2-710 & 2-718(1), Note comment 1)

Back 73

-Remedies are essentially cumulative but don't overshoot lost expectancy

Front 74

S REMEDY

2-704 - Seller's Right to Identify Goods to the Contract Notwithstanding Breach or to Salvage Unfinished Goods

Back 74

Aggrieved seller can:
1. identify to the contract conforming goods not already identified if at time he learned of breach they are in his possession/control
2. treat as subject of resale goods even though goods are unfinished
3. Use reasonable commercial judgment to avoid loss and finish the goods or cease manufacturing and resell for scrap/salvage value or proceed in any other reasonable manner.

Front 75

S REMEDY

2-704(2) unfinished goods; Seller's rights and Obligations

Back 75

.

Front 76

S REMEDY

2-706 - Seller's Right of Resale

(analogous to 2-712 for Buyer)

Back 76

Requisites for aconforming Resale:

(a) good faith

(b) done in a commerciallyreasonable manner(c) notice given to the buyer

Damages computation:

KP - Resale Price +incidental expenses - expenses saved due to the breach

Front 77

When B has rightfully revoked acceptance

2-707(a) - Buyer standing in the shoes of a Seller

B has Right to Resell

Only as linked to 2-711(3): Buyer's Remedies: Interest in Rejected Goods)

Back 77

707 - definition

711(3) - B remedies may resell good after rightful rejection or justifiable

the person in a position of a seller (it could be the buyer who is recovering losses by selling a good, and then paying it back to the seller)

-If B owns security interest in goods

that the Seller technically owns

-then B can sell goods himself

and keep amount the S owes to Him

Front 78

2-707(a) - Buyer standing in the shoes of a Seller B has Right to ResellOnly as linked to 2-711(3): Buyer's Remedies: Interest in Rejected Goods

Back 78

purpose is to give buyer opp to resale the good for as much as they could get, and then pay any overage back to the seller. Instead of giving the good back to the Seller and the seller reselling it in at a lower price.

Front 79

2-708 - Sellers Hypothetical Resale

(K - market = damages; also lost profits)

Back 79

S’s Hypothetical Resale → 2-708

Contract Price - MarketPrice

- use the timeand place of tender as the relevantmarket.

-In a shipment contractthis is where the SR puts the goods into the possession of the carrier

- In a destination contractthis is where the BR picks the goods up

-If an actual resale isnonconforming, can use this provision instead

-However, shouldn’t profitfrom making a nonconforming resale. If you would get more than your expectation(1-305) (i) E.g., making a profit (ii) Judge can use 1-305 to limit damages to actual expectation (e.g.,the difference between the K price and what you got from the resale). If theresale was for more than what the market price was, you shouldn’t be rewardedfor making a nonconforming resale.

Front 80

2-709 - Action for Price; Exclusive List

Exclusive listing of instances in which SR can get price

Back 80

(a) Goods accepted and B hasnot paid

(b) Goods lost or damagedwithin a commercially reasonable time after risk of loss passed to B

(c) goods identified to thecontract S is unable to resell after a reasonable effort, or circumstances indicatethat such an effort would be unavailing

- No action for the price where there is unjustified rejection ofperfect tender

- If there is a rightful revocation, cannot havean action for the price

Front 81

2-710 incidental damages for the Seller

Back 81

Can be combined with other remedies

- Incidental damages to theaggrieved S include any Commercially Reasonable charges, expenses, orcommissions incurred in Stopping delivery, in the transportation, care, andcustody of buyer’s goods after breach, in connection with return or resale ofthe goods or otherwise resulting from the breach.

Front 82

Buyer's Remedies are set forth in sections:

2-711 to 2-718

Back 82

.

Front 83

2-711 When B may gain a recovery of a Price Paid

B's security interest in rejected goods

Back 83

.

Front 84

2-712 Buyer's Right to Cover damages

(analogous to 2-706 for Seller)

Back 84

.

Front 85

2-713 B Remedies under Hypothetical Cover

(market – K price)

-remember goal is to put in best position as if there had been no breach

Back 85

-Where cover did notoccur, there is a non-complying cover, or where damages under 2-712 are $0, canuse a “hypothetical” cover, using market prices

-Market price where tenderoccurs (same as for hypothetical resale)

-Damages: market Price - KPrice - expenses saved as a result of the breach

- shipping costs can besubtracted as expenses saved. Howeverif you would have covered in that market, would have still needed to payshipping costs (are operating in a hypothetical market).

So, in thehypothetical market, these expenses still exist.

Texpar Energy v. Murphy Oil - Expected Loss of profits– incidentals or $386,370 under 2-713.

Front 86

2-714 Direct Damages - Loss of Value on the Thing Sold

Back 86

.

Front 87

2-715 Incidental and consequential damages

Back 87

.

Front 88

2-716(1) Buyer's Right to Specific Performance in some cases

Back 88

.

Front 89

2-717- Buyer's Right to set-off damages from price owing

Back 89

.

Front 90

2-718(1) Liquidated Damages

Back 90

.

Front 91

2-718(2)(3) Breaching Buyer's Right to Restitution

Back 91

.

Front 92

2-719 - Limitations on Remedies

Exclusions of Consequential damages.

Contractual Modification or Limitation of Remedy

(cross 2-316 and MA 2-316A

Back 92

-Parties can agree to remedies in addition to or instead of those provided by UCC. Once they agree to it, it's optional unless expressly agreed to be exclusive
If fails of essential purpose (doesn't give minimum adequate remedy), basic doe remedy applies.
Limitation of consequential damages: if (1) and (2) are read dependently, then don't have to prove exclusion was unconscionable to disregard exclusion of consequential damages.
If (1) and (2) are read independently, then you have to prove unconscionability to exclude consequential damages

Front 93

2-725 SOL on Remedies; exclusions on

(cross MA 2-318 & Bay State case)

Back 93

.