Wednesday, April 6, 2011

April 6, 2011 - UCC 2 (con't)

UCC 2 Apply

Are you selling, or is there a transaction in goods? This includes computer software, timber, and crops. If UCC applies, then is the agreement between merchants? Why is this important?

> A merchant is one who deals in the goods of this kind OR, holds himself or herself as having special knowledge/skill (i.e., I'm just an old country boy example - play dumb out there).


> Offer, communicated to another - not a request to negotiate or bid

> Was the offer revoked prior to acceptance?

If not revoked,

> Acceptance - express, sent by authorized means (why we use ASN)

- Beginning performance, only if the offeror is notified with a time after performance has begun so that the offeror cannot revoke during performance.

- By shipment of goods (i.e., ASN and Invoice on ship)

> Where the goods non conforming? Look to the following - are both parties merchants? If not merchants, then buyer, or customer has benefit of doubt. KEY - look at only dealing with merchants (i.e., wholesale trader)

Missing terms? UCC gap fillers.

> Consideration

> Revocation

* * *

Can always void on:

Illegal (crime, tort)

Unconscionable (contrary to public policy); can't limit personal injury damages

Statute of Frauds - certain K's require writing, e-mail is good, and $500 or more must be in writing - note again our paper trails - ASN, Invoices, et al.

Capacity - under 18, void; unfair (duress, undue influence), mistake of material fact


- Judgment
- Quasi K
- Unjust enrichment
- Three R's - Rescission, Restitution, Reformation (are there any Lutherans in the room)

If K is Valid

- Are parties merchants? - Implied warranty of merchantability.

Course of Dealing

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