Contracts Ucc Review

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2-207 Additional Terms in Acceptance or Confirmation (Battle of the Forms)(If there is an element of surprise)

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(1) A definite expression of acceptance OR a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, UNLESS acceptance is expressly made conditional on assent to the additional or different terms.
(2) The ADDITIONAL terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; OR
(c) notification of object to them has already been given or is given within a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplemental terms incorporated under any other provisions of this Act.

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2-207 Battle of the Forms comments

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Types of situations for this: agreements reached orally followed by formal memoranda emodying agreed terms and adding terms not discussed; exhange of printed purchase and acknowledgement forms.
Basically, unless the changes are material or unless the other party objects within a reasonable time.
IF there are confirmation forms exhanged with conflicting clauses, that satisfies notification under (2).
To see of the proviso is triggered: "I won't go forward with the deal unless you assent to my terms." Watch the language: "subject to", etc.

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2-206 Offer and Acceptance in Formation of Contract

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(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 medicum 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 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 accomodation to the buyer.
(2) Where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time amy treat the offer as having lapsed before acceptance.

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2-206 Comments

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Loading on the seller's own truck can constitute beginning of performance.
Notifying buyer that the shipment is an "accomodation" keeps the performance of shipment from being acceptance.

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2-302(1) Unconscionable Contract or Clause

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(1) If th ecourt as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

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2-708 Seller's Damages for Non-Acceptance or Repudiation

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(1) Subect to subsection (2) and to the provisions of this Article with respec to proof of market price (Section 2-723), the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article (Section 2-710), but less expenses saved in consequence of the buyer's breach.
(2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this Article (Section 2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.

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2-710 Seller's Incidental Damages

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Incidental damages to an aggrieved seller include any commercially reasonable chares, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer's breach, in connection with return or resale of the goods or otherwise resulting from the breach.

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2-711 Buyers Remedies in general; Buyer's Security Interest in Rejected Goods

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(1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
(a) "cover" and have damages under the next section as to all the goods affected whteher or not they have been identified to the contract; or
(b) recover damages for non-delivery as provided in this Article (Section 2-713),
(2) Where the seller fails to deliver or repudiates the buyer may also
(a) if the goods have been identified recover them as provided in this Article (Sectiioin 2-502); or
(b) in a proper case obtain specific performance or replevy the goods as provided in this Article (Section 2-716).
(3) On rightful rejection or justifiable revocatioin of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (Section 2-706).

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2-712 "Cover"; Buyer's Procurement of Substitute Goods

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(1)After a breach withing the preceding section the buyer may "cover" by making in good faith and without unreasonable delay any reasonable purchase of or contrat to purchase goods in substitution for those due from the seller.
(2) the buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2-715), but less expenses saved in consequence of the seller's breach.
(3)Failure of the buyer to oeffect cover within this section does not bar him from any other remedy.

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2-716 Buyer's Right to Specific Performance or Relevin

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(1) Specific peformance may be decreeed where the goods are unique or in other proper circumstances.
(2) the decree for specific performance may include such terms and conditions as ot payment of the price, damages, or other relief as the court may deem just.
(3) The buyer has the right of replevin for good identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicat that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered. In the case of goods bought for personal, fmaily or househould purposes, the buyer's right of replevin vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.

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2-715 Buyer's Incidental and Consequential Damages

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(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
(2) Consequential damages resulting from the seller's breach include
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty.

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1-305 Remedies to be Liberally Administered

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(a) The remedies provided by the Uniform Commercial Code must be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special damages nor penal damages may be had except as specifically provided in the Uniform Commercial Code or by other rule of law.
(b) Any right or obligation declared by the Uniform Commercial Code is enforceable by action unless the provision declaring it specifies a different and limited effect.

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2-718 Liquidation or Limitation of Damages; Deposits

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(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.
(2) Where the seller justifiably withholds delivery of goods because of the buyer's breach, the buyer is entitled to restitution of any amount by which the sum of his payments exceeds
(a) the amount to which the seller is entitled by virtue of terms liquidatin ghe seller's damages in accordance with subsection (1) or
(b) in the absence of such terms, twenty per cent of the value of the total performance for which the buyer is obligated under the contract or $500, whichever is smaller.
(3) The buyers' right to restitution under subsection (2) is subject to offset to the extent that the seller establishes........

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2-613 Casualty to Identified Goods (relief in the event of changed circumstances of goods unknown to parties BEFORE risk of loss passes to buyer, for goods that are the only goods that would satisfy the contact)

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If goods suffer casualty without of either party before the risk of loss passes to the buyer, then
(a) if the loss is total the contract is avoided AND
(b) if the loss is partial or the goods have deteriorated beyond conforming to the contract, buyer has choice to treat the contract as avoided OR accept them with adjustment for deterioration BUT then gives up further right against seller.

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2-615 Excuse by Failure of Presupposed Conditions (excuse of timely delivery)

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When performance has become commercially impracticable because of unforeseen supervening circumstances not within the contemplation of the parties at the time of contracting, seller must notify buyer seasonably of delay and may allocate production in a fair and reasonable manner among all his customers. THIS DOESN'T COUNT IF THE CONDITONS WERE SOMEWHAT FORESEEABLE, I.E. WAR WAS BREWING.

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2-614 Substituted Performance (for impracticable loading/unloading/tranport/payment)

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If loading/unloading/specified transport becomes commercially impracticable, must substitute if one is reasonable availabe.
IF payment fails because of governmental regulation, seller may withold or stop delivery unless buyer provides a substitute means of payment.
IF delivery has already been taken, payment in the manner provided by regulation dicharges buyers obligation.

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UCC 2-205 "Firm Offer"

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An offer by a merchant to buy or sell goods in a signed writing which, by its terms gives assurance that it will be held open is irrevocable, for lack of consideration, during the time stated or a reasonable period of time.

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2-209 Modification, Recission and Waiver

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(1) An agreement modifying a contract within this Article needs no consideration to be binding.
(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requiremetn on a form supplied by the merchant must be separately signed by the other party.
(3) The requirements of the statute of frauds of this Article (Section 2-201) must be satisfied if the contract is modified is within its provisions.
(4) Although an attempt at modification or recission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.
(5) A party who has made a waiver affecting an executory ortion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.