Professional Documents
Culture Documents
Principles
a. WHAT
i.
ii.
iii.
iv.
1.
2.
3.
2.
3.
4.
c.
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4. Offer
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a. Common Law
i.
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b. UCC
i.
ii.
iii.
iv.
v.
5. Acceptance
a.
Common Law
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ii.
**Terms of new K consist of all terms on which writings agree and supplementary UCC gap filler
terms
iii. **AND ALSO 2-206
q. (4) If acceptance, when is acceptance effective?
i. 2-207 Battle of the Forms
1. ADDITIONAL / DIFFERENT TERMS (SEE BINDER)
r. (4) If no acceptance, was it a rejection or counteroffer? When do these things become
effective? (THIS BLEEDS INTO STEP 6)
i. Rejection
ii. Counter-offer
1. 2-207 Battle of the Forms
a. ADDITIONAL / DIFFERENT TERMS (SEE BINDER)
s.
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2-204 Rolling Ks
a. Final assent to K deferred until non-drafting party has chance to read and
reject terms
b. Material terms
c. SEE BINDER STEPS
2. 2-207 Battle of the Forms
a. SEE BINDER STEPS
b. (2) Pre-Contractual Liability / Preliminary Agreements (FROM OFFER STEP)
i. Liability for Failed Negotiations
1. Restitution (actual benefits conferred on other party)
2. Reliance (Dixon)
3. Misrepresentation (reliance protected) not so much here
4. Bargained-for Agreement to Negotiate in Good Faith
ii. Preliminary Agreement
1. Generally
a. **Objectively manifested intent to be bound
b. **Part performance
c. **Presence of open times
d. **Type of K
2. Types of Binding Preliminary Agreements
a. Type 1
i. Fully binding preliminary agreement
ii. Parties agree on all points that require negotiation and all that remains
is memorialization in a doc
b. Type 2
i. Binding preliminary commitment
ii. Parties agree on certain major point, accept commitment to negotiate
in good faith to reach final agreement
iii. Good faith breached when refuse to negotiate, improper tactics,
unreasonable proposal, nondisclosure, negotiations with others,
reneging
c. (3) Termination
i. Offeree / Offeror Death / Insanity
ii. Destruction of Ks Subject Matter
iii. Supervening Illegality
iv. Abandon Performance
d. (4) Parol Evidence Rule (SEE BINDER)
i. Evidence of PRIOR oral / written contemporaneous agreement
ii. Partial v. Complete Integration
1. Partial: final but incomplete (cant contradict, can supplement) SINE (nonassignable
option doesnt contradict)
a. PARTIAL IF: Omit a consistent additional agreed term that (1) given separate
consideration for agreed term OR (2) term naturally omitted from writing
2. Complete: final and complete (cant contradict nor supplement GIANNI)
iii. PER does NOT exclude evidence of:
1. Is writing an integration?
2. Interpretation of the writing
3. Things that render agreement void/voidable (fraud, duress, etc.)
4. Modification of agreement AFTER the writing
5. Consistent conditions precedent
iv. Common Law
1.
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1. Objective intentions
CORBIN (RISING TREND): Look at all relevant evidence to determine
whether intend to supersede prior agreement with writing (dont look
at prior, but current writing)
1. E.g. Evidence showing prior agreement was made and that
parties didnt discuss eliminating it by signing the writing
would be relevant
c. Integration clause
d. Collateral agreements (different from agreements in writing)
2. STEP 2: Can PE be introduced and are there limits?
a. CANNOT contradict writing in any case
b. Consistent terms ARE ADMISSIBLE unless completely integrated
c. See if term would have been included based on surrounding circumstances
d. Does NOT bar mutual mistake BOLLINGER proof of omitted oral agreement
3. STEP 3: Use PER to reform the writing
a. Reform for mutual mistake
i. Need clear and convincing evidence of the mistake
b. Reform for fraudulent misrepresentation
c. No oral modification clauses
UCC 2-202
ii.
v.
1.
g.
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7. Statute of Frauds
a.
Common Law
i.
b.
iii.
c.
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ii.
1. CONSIDERATIONS:
a. Deprivation of reasonably expected benefit
b. Availability of compensation for lacking benefit
c. Extent of forfeiture required by party that failed to perform
d. Likelihood that party failing to perform will cure
e. Good faith
2. BREACH TEST
a. Is it uncured?
b. Is material (materiality factors WALKER NEON SIGN SEE BINDER)
c. If not material / if material, what remedies?
d. Divisibility
e. Unjust enrichment (even if not divisible, can get restitution)
UCC
1.
2.
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f.
a.
2.
2-209 Exception
i. Allows K modification w/o consideration if (1) good faith (2) legit
consideration
3. Avoiding PEDR
a. **rescind old K
b. **make a new K with modified terms
c. **make only small change
d. OR **rely on new Common Law
g. Undue Influence/Capacity
i. **special relationship **weakness **exploitation of weakness assent induced by unfair
persuasion on part of stronger
ii. Minors
1. INFANCY RULE
a. Exception: necessaries, judicial approval, parental consent
iii. Mental Incompetence
1. GUARDIANSHIP ORDER (VOID K)
h. Unconscionability
i. Sliding scale
ii. Procedural
1. Gross inequality of bargaining power, inequality of sophistication, reasonable
opportunity to understand terms
2. ADDITIONAL UCC
a.
iii.
Substantive
1. Unfair or one-sided result without business justification (e.g. grossly overpriced,
deprivation of benefits)
iv. Standard Form K
1. Surprise?
2. Oppression/Unfair Results?
v. REMEDIES
1. See STEP 9
i. Public Policy
i. BALANCING TEST
ii. REMEDIES
1. See STEP 9
iii. Exculpatory Clauses
iv. Covenant Not to Compete
j. Good Faith
k. Changed Circumstances
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i.
ii.
l.
Impracticability
Frustration / Impossibility
1. BURNED PIANO TAYLOR
2. TRANSATLATNIC FINANCING V. US
3. SELLAND PONTAIC V. KING (SOURCE OF SUPPLY)
4. KRELL V. HENRY (LICENSE FOR CORONATION)
5. YOUNG V. CITY OF CHICOPEE (IMPLIED CONDITION THAT WILL EXIST / BRIDGE BURNED)
6. *****Must take steps to alleviate the impossibility (CANADIAN INDUSTRIAL ALCOHOL V.
DUNBAR MOLASSES CO.)
iii. <Mistake>
Repudiation
i. Common Law
ii.
1.
UCC
1.
SEE BINDER
2-609
m.
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9. Remedies
a. Unconscionable
i. Refusal to enforce K
ii. Sever the term
iii. Limit application of term to avoid unconscionable result
b. Public Policy
i. Leave parties where they are if K not enforced, dont intervene
ii. Partial performing party doesnt get restitution unless not equally in the wrong
c. Expectation
i. IF K PERFORMED
ii. Plaintiffs loss in value caused by the other partys failure to perform or the rendering of
defective performance + Any other loss such as incidental (cost of reasonable efforts to
mitigate damages like cover) or consequential damages the contract value of what the
plaintiff partially received any cost or other loss the plaintiff avoided by not having to
perform the contract (costs/loss avoided by breach)
iii. UCC 2-712 / 2-713: consequential damages specifically allowed
d. Reliance
i. IF NO K MADE
ii. Cant exceed the full K price
iii. Losing Ks
e. Restitution
i. BENEFIT CONFERRED ON OTHER PARTY
ii. Prevents unjust enrichment (benefit at anothers expense)
f. Equitable Remedies
i. Specific Performance
ii. UCC
1. 2-716 (unique goods), 2-709 (actions for price)
g. UCC REMEDIES
i. Buyers Remedies
1. Incidental or consequential damages (2-714 /2-715)
2. 2-715(2)(a): consequential damages including loss from general / particular
requirements that seller had reason to know and cant be covered / other
3. Non-delivery, delivery of non-conforming goods, repudiation
a. Recover price actually paid AND one or two remedies: cover price k price (2712) / market price k price (2-713)
4. S justifiabily withholds delivery of goods due to breach
a. Buyer gets restitution
5. Breach of warranty (2-714(2))
a. $ at time and place of acceptance accepted - $ would have had if warranted
ii. Sellers Remedies
1. Wrongful rejection of goods, wrongfully revoke acceptance, dont pay, repudiation
a. Action for price
i. Price of goods accepted by buyer
ii. Price of goods lost/damages after risk of loss given to buyer
iii. Recover price of goods identified to K if seller cant resell at reasonable
price
b. K price resale price
c. K price market price
d. Incidental / consequential damages
h. UCC 2-706 / 2-708(2) / 2-709 SELLERS REMEDIES
i. TIMELY
j. K Price Resell Price + Incidental damages
RESALE IN
Expenses saved
GOOD FAITH
(2-706)
k. DAMAGES
l. If damages from 2-706 arent adequate
FROM LOST
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r.
Limitations on Damages
i. Avoidability (efforts to mitigate)
ii. Foreseeability
iii. Reasonable certainty of damages
iv. Prevent windfall
v. Sentimental value
vi. Emoitional distress excluded unless serious
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