Marcantel Commercial Law Article 2 Formation And Terms

Front 1

Things affecting proof of terms (PER) (2-202)(1-303) (common law)

Back 1

Only protects terms that are integrated (written)

1. Total I: intended to be final expression. No supplementing or contradicting.

2. Partial I: not intended to be final expression. no contradicting, only supplementing.

Front 2

to determine whether partially integrated or fully (Common Law)

Back 2

Corbin (Maj): look at everything, and then determine whether parties intended to be final expression

Williston (min.): four corners of the document. if merger clause, dispositive, and shows intent to make final integration.

Front 3

things that can be added even against PER (common law) CREMIC (PER simply doesn't speak to them)

Back 3

1. condition precedent

2. rights in equity

3. explain (if ambiguity, judge determines ambiguity, then can explain)

4. modifications

5. invalidity

6. collateral agreements

Front 4

(2-202) PER (code) (common law + major changes)

Back 4

1. a party is permitted to admit big 3 evidence for explaining even in the absence of an ambiguity, even if completely clear on its face

2. a party may admit big 3 evidence for the purpose of supplementing even if completely integrated.

(the practical effect of changes is if you are trying to prevent big 3 evidence is if purpose is to contradict).

Front 5

Big 3 Evidence (1-303) (follows the explain in CREMIC, must need ambiguity for Common law)

Back 5

(can be conflicting, jury decides)(if conflict hierarchy controls)
1. course of performance
2. course of dealing
3. trade usage

Front 6

course of performance

Back 6

course of performance: look to how parties have behaved in this K (multiple moments of performance, a sequence of specific behavior in 1 specific K.

Front 7

course of dealing

Back 7

course of dealing: look at how parties have behaved in multiple K over time. (sequence of behavior in multiple K over time)

Front 8

trade usage

Back 8

trade usage: conduct that is widely observed in the location(place)/vocation/trade, such that the parties should have known it was part of the agreement.
1. location can be anything withiin a geographic are, even if not same trade or vocation. it is just specifc to this place
2. vocation: specific area of employment
3. trade: general area of business

Front 9

Firm Offer Rule (2-205) (know concept)

Back 9

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 not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocably exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.

Front 10

2-204 (formation in general)

(3 subparts) (offer)

Back 10

1. parties can achieve agreement through any means (oral, written, and other things), so far as I can look at it and see you met assent it is all good.

2. I don't need to be able to identify precise moment, as long as we can determine that it was achieved was enough.

3. a K will not fail for indefiniteness as long as you can determine through some method to define those indefinite terms.

Front 11

2-206 (acceptance concepts) (offer)

Back 11

a. Acceptance

1. absent the offeror being highly specific and narrowing the means of acceptance, the oferee can accept in any way so long as it is reasonable.

2. If an offer to purchase, and you are seller, you can accept through performance itself (at the moment of shipment, if they are conforming goods, you performed the K; if they are nonconforming, you have also breached except for accommodation) or promise to perform

b. lapsed provision: if a party does not communicate acceptance within reasonable time, then the lack of response can be seen as thought he offer has lapsed.

Front 12

2-207 (acceptance) (purpose to destroy Mi and LS rules) (subpart 1) (formation : did it happen)

Back 12

did formation occur:

yes, then go to sub part 2.

no, we might be going to sub-part 3 or no where.

Front 13

types (2-207)

Back 13

type 1: parties exchange forms, offer and acceptance process

type 2: oral agreement with confirmatory memorandum

type 3: proviso situations

Front 14

terms (2-207)

Back 14

different: same subject matter, but they conflict

additional: different subject matter that the other does not speak to.

Front 15

sub-part 2 (type 1) additional or different terms (card 1) (2-207)

Back 15

1. if different: terms are knocked out, and it is though the resulting K will say nothing about them.

2. if additional: need to determine if between merchants (broad: in business of and acting in business capacity)

a. not merchants: terms become proposals and don't come in unless original offeror specifically and explicitly says yes to each one.

Front 16

sub-part 2 (type 1) additional or different terms (card 2)(2-207)

Back 16

b. if between merchants, they automatically come in except for if 3 situations happen.

1. offer limits acceptance to the offer itself. (MWHW) (prevents additional terms)

2. material alteration (cause Surprise and Hardship) (need reasonable person and I for both)

3. notice of objection: if no notice of objecting after reasonable time, acquiescence and terms are in.

Front 17

sub-part 2 (type 2) confirmatory memorandum (2-207)

Back 17

K formation has already been achieved. Now we just look to the additional or different terms.

1. different terms have no legal affect, if single

2. different terms are knocked out if different from oral and each other.

3. if additional then we run them through the the step 2 of part 1. (merchants, not merchants)

Front 18

Blending type 1 and type 3 (reconstruction (subpart 3))(2-207)

Back 18

if proviso in acceptance no K formation unless the offeror assents explicitly and specifically to each term, and then the terms in the acceptance control.

absent the assent, if there is performance then the performance constitutes the K, reconstruct

1. Identical terms come in

2. UCC gap fillers (warranties, and others)

3. plus performance actions

Front 19

Blend type 2 and type 3 (2-207)

Back 19

confirmatory memorandum with MWHW clause will never prevent formation because contract exists already.

Front 20

Express Warranty (2-313) (terms) (types of EW)

Back 20

1. Affirmative: affirmation of fact or promise (something that can be proven t/f right now.) actionable right now unless its a prediction (t/f in future, actionable then) or Puffery (never actionable)

2. Description: technical specs and other description of goods purchased

3a. sample: pulled from bulk

3b. model: look like what you get except smaller.

Front 21

Express Warranty (2-313) (terms) (what you need to be actionable) (no reliance needed)

Back 21

1. related to good: the things that are said or done relate to the good trying to be sold.

2. forms the basis of the bargain: if any of the four types occur, and statements are made of the item shown to the buyer before, or contemporaneously with, full performance, the buyer will have the presumption that it formed basis of the bargain. Seller can overcome, but must demonstrate by clear proof that it did not form basis of bargain.
Problems occur when there is time between one and the other.

Front 22

Implied warranty of title (2-312)

Back 22

intended to provide to the buyer that the buyer is getting perfect title, free of any encumbrances.

1. at moment of performance there will either be full performance or breach.

2. only way to abrogate

a. seller can tell buyer what he is not getting, but as is or disclaimer is not enough.

b. the circs. can be such that a reasonable buyer would know that there were problems with the title. (abrogation option)

c. ancillary issues.

Front 23

implied warranty of title (2-403)(transfer of title) (was it stolen)

Back 23

1. when seller has voidable title, seller can transfer perfect title, to a good faith purchaser for value, and title is cleansed.

2. when seller has void title, seller can never transfer title to anyone, ever.

Front 24

implied Warranty of Merchantability (2-314)

Back 24

A. only applies to narrow merchant (merchant who deals in goods of the kind)

B. 2 things

1. passes without objection within the trade: are the defects such that they would pass without objection within the trade, and if they would there is no breach.

2. fitness for purpose: can it be used for intended purpose.

Front 25

Implied Warranty of Fitness (2-315)

Back 25

(buyer has specific need for this product)

1. seller had reason to know that buyer had particular purpose for the good

2. seller had reason to know that buyer was relying on sellers skill or judgement for selection.

3. buyer actually relies.

Front 26

abrogation of warranties (2-316) (does not apply to 2-312)

Back 26

1. express warranties: negating express warranties in same document fail, separate document abrogation may not fail.

2a. needs to include the word merchantability, and if it is in writing must be conspicuous.

2b. particular purpose: must be in writing and conspicuous, no special language needed.

3. aggregate provisions: "as is", or "with all faults"

Front 27

Limitations on remedies (2-719) (limiting the relief that people can receive) (card 1)

Back 27

sub-part 1: can have limitations on remedies, if you attempt to create a new remedial structure, presumption that you have added a new remedy to the options unless you specify that the remedies are limited to the exclusive one listed.

sub-part 2: if you limit, the limit can not fail of its essential purpose leaving them with no remedy. if it does fail of its essential purpose then the person is now allowed to the full extent of the code. (it fails if the seller can't or won't fix the problem)

Front 28

Limitations on remedies (2-719) (limiting the relief that people can receive) (card 2)

Back 28

Sub-part 3: 1. you can limit consequential damages so long as its operation would not be unc. under 2-302 (unc if unfair), and

2. if the operable effect is to limit personal injury from a consumer good(good that are used for personal, family, household), the limitation of this is prima facia unconscionable.

3. if you have a seperate clause limiting remedies and consequential damages, they are read seperately.