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Rutgers University, Newark School of Law
Buchanan, Neil H.

-Common Law and Article 2 of UCC

Steps of a Contract
-If you have an agreement, and it is enforceable, do you need a statute of frauds? If yes or no, did the party perform? If no, does the non-performing party have and excuse? If not, what are the remedies?

8 Important Issues


1) Was there an agreement?
a. Look at offer and acceptance

2) If you have an agreement, is there any reason why the contract should be enforced?
– What are reasons not to enforce agreement? Mistake, illegal (ask, if I refuse, will court make me live up to it?)

3) If we have an enforceable agreement, does the statute of frauds apply to require a writing to get into court?
-Vast majority of contracts do not have to be in writing.


4) Terms of the agreement. What is it the parties agreed to do?

5) Once you know what the terms are, did the parties perform according to the terms of the agreement?


6) If the party did not perform, does the nonperformer have a legal excuse? (impractical, duress, etc.)


7) What remedies are available or what are the consequences for failure to perform? (Can the injured party get damages or not?)

8) When do people who did not make a contract or agreement have rights or duties under that contract (third parties rights and agreements; no covered in contracts class)?

How do you answer an exam question?
-Focus on answering the question and not historical circumstances.
-Figure out what law applies? Where do I look to find out what law applies?

2 bodies of law:
1) Article 2 of UCC: It is the law. A statute that governs the sale of goods.
-How do you know when Article 2 applies? It is when the contract involves the sale of goods.
2 Components:
a) Sale: Transfer of title for a price.
b) Goods: Movable personal property. Not real estate, not sale of services.
-Sometimes you will get a sale of goods and services in one fact pattern. Ex. Carpet company comes in and installs carpet? Goods: Carpet Service: Installation.
-How do you know if UCC applies? Ask yourself, what is more important, goods or services? If goods predominate, then you use Article 2 of UCC.
-In the carpet example, the goods are more important. Services are incidental.
-Ex. Hiring a painter. This is more service dominated. You would use the common law for this.

2) Restatement Seconds of Contracts: Not the law at all. It is simply a reiteration of some basic contract principals. **Case law is the law. It is binding in that jurisdiction.
-You have to write about the doctrines on the exam.

7 Pairs of Phrases or Vocabulary Words Needed for the Exam:

1) Contract and Agreement: They are not synonomous.
2) Bilateral and Unilateral Contracts. How an offer can be accepted.
3) Duty and Condition. Know difference be

ifying the defendant.
2. Then ask, did the defendant do anything in exchange for the promise.
3. Identify the plaintiff and ask whether that person gave anything up in return for the defendant’s promise.

3 Common Fact Patterns of Consideration:
-A consideration question will ask if the consideration was adequate, whether past consideration can be bargained for, or whether you can have a consideration modification.

A. Was the consideration adequate?
-This does not matter as long as there was a bargain for it.
Cases: Cases with Issues of Consideration: Rst. 2nd Sec. 71

Hamer v. Sidway. P. 41. Uncle promises nephew 5k if he refrains from his vices. Boy does. Consideration was his giving up of his right to do his vices. Judgment for plaintiff to recover 5k from estate of uncle.

Baehr. V. Penn-O-Tex Oil Corp. (p.47) The agent’s promise to the lessor to pay rent was unenforceable because there was no consideration, and the promise did not amount to a contract. Evidence was insufficient to infer that the lessor’s delay in filing suit was forbearance in consideration of assurance of payment. Judgment for defendant.