Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
35 Cards in this Set
- Front
- Back
|
firm offer
|
-written, signed, by merchant
-open for a specified time - gives assurance -irrevocable up to 3 months CONSIDERATION NOT REQD-ucc sale of goods |
|
|
acceptance
|
-valid when sent
-terms - indefinite (open price, qty, delivery) (under common law, acceptance - terms must mirror offer) |
|
|
oral modification of K < $500
|
-considered BINDING
ex. if orally agree to change the delivery date, K is enforceable & binding -non-merchant won't affect whether or not modification is binding (under common law - need consideration = OPTION K) |
|
|
STATUTE OF FRAUDS
|
SPAM
-specifically mfgd goods -p -a -m -merchantability - if oral K is confirmed in writing and signed by party sending it & recvd by other party -both parties are bound UNLESS the party receiving the confirmation OBJECTS within 10 days of receipt -the K must be signed by the party to be charged to be enforceable but with merchants, only the party sending the confirmation needs to sign |
|
|
non-conforming goods
|
shipping non-conforming goods = breach of contract
-shipping both conforming & non-conforming goods = acceptance of offer |
|
|
outputs K
|
I will buy everything you make
-enforceable even though qty is not known in advance -consideration = i will not sell output to any other party |
|
|
requirements K
|
I will buy so many of this
-terms not specific |
|
|
elements of contract -ucc sales of goods
|
-OFFER
-ACCEPTANCE ***NO CONSIDERATION*** ***TERMS NEED NOT BE DEFINITE*** (under common law, terms must mirror offer in acceptance) |
|
|
warranty of title
|
the seller warrants good title, rightful transfer and freedom from any security
interest - free & clear -does not have to be in writing -seller does not have to be a merchant |
|
|
strict liability
plaintiff must prove |
1) seller was engaged in business
of selling product 2) product was defective 3) defect was unreasonably dangerous 4) defect caused injury to plaintiff -plaintiff can recover if he cannot prove negligence involved -seller will be liable regardless if he is negligent or at fault |
|
|
2 remedies for fraud under UCC Sales Article
|
plaintiff may affirm the agreement & sue for damages under the tort of deceit
plaintiff may rescind the K & sue for damages resulting from the fraud |
|
|
risk of loss - mechant selller
when does it pass to buyer? |
on physical receipt of goods
|
|
|
risk of loss - non-merchant seller
when does it pass to buyer? |
on tender of delivery
|
|
|
oral K between merchants
|
-if confirmed by writing (signed purchase order from buyer sending it - w/in reasonable time limit)
both parties are bound -unless receiving party objects within 10 days of receipt -need only be signed by party to be charged to be enforceable |
|
|
express warranty
what does it guarantee? |
goods that will conform to sample
|
|
|
warranty of merchantability
what does it guarantee? |
-implied warranty = guarantees goods are fit for ordinary purposes, average fair quality
-when seller is a merchant -unless merchant specifically disclaims it = goods sold "as is" = exception to the rule |
|
|
breach of implied warranty of merchantability
(buyer wants to sue against seller - sustains personal injuries from product) |
seller is a merchant of the product
|
|
|
implied warranty of fitness for a particular purpose
|
when a seller (merchant or non-merchant) has reason to know the buyer's particular purpose and knows the buyer is relying on the skill & judgment of the seller
-need not be in writing |
|
|
common carrier liabilities
|
-based on strict liability
-liable for losses whether or not negligent -exceptions: natural disasters - earthquake |
|
|
strict liability
|
-plaintiff sues mfr, wholesaler, retailer for bodily injuries
-plaintiff can recover even if she cannot show any negligence |
|
|
transfer of property rights to a good faith purchaser
|
-good faith purchaser gets title
-person may recover $$ damages from the person who sold it to good faith purchaser |
|
|
title of goods to pass to buyer from seller - requirements:
|
goods must be identified to contract
-seller can keep in possession, id them, but title still passes to buyer |
|
|
fob shipment contract
who has risk of loss? |
buyer has risk of loss once goods are delivered to carrier
|
|
|
fob destination contract
-if ships wrong goods, buyer rejects and doesn't accept, who has title to goods? |
title of goods will revert back to seller at time of rejection
|
|
|
Intl Sale of Goods - if no specified terms in intl sales shipment, when will risk of loss pass to buyer?
|
when seller delivers goods to the first carrier for transmission to buyer
|
|
|
sale on approval
|
allows buyer to return goods even if they conform to contract
-seller retains title & risk of loss until buyer accepts |
|
|
when does risk of loss pass from merchant seller to buyer?
|
buyer's physical receipt of goods
|
|
|
seller ships nonconforming goods & is rejected by buyer & destroyed in a fire in a warehouse
who has risk of loss? |
non-conforming goods = breach of K
seller has risk of loss until non-conforming goods are accepted by buyer or cured by seller -shipping terms have no bearing on risk of loss b/c goods did not conform to contract -if goods were conforming, risk of loss would pass to buyer at seller's warehouse based on shipping terms FOB seller's warehouse |
|
|
non-merchant to buyer
who has risk of loss? |
I bought a painting from W (non-merchant)
-W tendered delivery after I paid him but I couldn't take possession -then someone stole the painting Risk of loss passes to me at W's tender of delivery |
|
|
liquidated damages provision
|
enforced if if it is not punitive but amounts to reasonable estimate of what the loss will be if breach of K
-seller is allowed to retain a deposit of $500 when a buyer defaults even if the parties had not agreed to a liquidated damage clause |
|
|
seller's obligation to buyer
|
hold conforming goods & give notification to enable the buyer to take delivery
|
|
|
seller's remedies when buyer breaches contract for the sale of goods
|
-right to cancel the K
-right to stop a carrier from delivering the goods -resell goods -recover compensatory & incidental damages -cancel the K |
|
|
buyer's remedies
when seller commits an anticipatory breach of contract |
-if non-conforming goods
(reject the goods, accept the goods or accept and reject the remainder) -right to cover (buy somewhere else) -demand assurance of performance -recover damages (not punitive) -sue for specific performance if goods are unique -right to replevin = form of legal action to recover goods from seller being withheld wrongfully -cancel the K -recover liquidated damages |
|
|
either seller or buyer may demand adequate assurance of performance with respect to performance of the other party
|
refusal of seller to give written assurance releases buyer from all obligations under a sales contract
|
|
|
statue of limitations for sales of goods
|
-4 years
-or parties can agree to less than 4 years but not less than 1 year |
