Select Page

St. Thomas University, Florida School of Law
Wolff, Mark J.


R 2d §1 defines a Contract- is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.


Is this a transaction for the sale of goods?
UCC § 2-105. Definitions: Transferability; “Goods”; “Future” Goods; “Lot”; “Commercial Unit”.
(1) “Goods” means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action.

Yes, apply the Uniform Commercial Code

Is this a section of the UCC that applies only to merchants?
UCC §2-104 Merchant”; “Between Merchants”; “Financing Agency”.
(1) “Merchant” means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

If yes, does the party qualify as a merchant under the UCC definition?

If yes, apply the section
If no, the section does not apply

No, apply common law and use Restatements

Does common law apply?

Common Law- made by court decisions based upon real cases that are litigated in court and that develop principles of law. Many incorporated into statutory law. Courts make decisions and they have precendtial value. Decisions of Supreme Court of US is the fact of law of the land.

What is the majority rule?
What is the minority rule?


When the offer is made:

Who is the offeror?
Who is the offeree?

When evaluating consideration:

Who is the promisor?
Who is the promisee?

Other party labels to identify:

Is this a creditor/debtor issue?
Is this a merchant?
Is this the guarantor?

Enforcing the contract or suing for alternative remedy:

Who is the plaintiff?
Who is the defendant?


Was a contract made between the parties?

Yes if, mutual assent (offer and acceptance) and consideration

· Was there mutual assent?
Wolffism: Essential elements of contractual relationship require mutual assent of the parties to the

a). Owen v. Tunison- buyer is suing the seller for breach of contract when the seller did not sell the land.
– it is important to look at the language of the contract. There must be an offer and acceptance. In tis case the letter was written which was only negotiation not a formal offer and acceptance. D wins.
b). Harvey v. Facey- purchaser is suing owner for specific performance and an injunction to restrain the town of Kingston from taking conveyance of the property when he refused to sell the land for the negotiated price.
– the first telegram asked for the lowest price- beginning of negotiation.
c). Fairmount Glass Works v. Crunden-Martin Woodenware- action by woodenware company against glass works for breach of contract when selling the glass jars.
– in this case immediate acceptance was implied as an offer so the phrase had an intent to sell.
– In advertisement cases make sure to look for quantity and language of commitment like first come first serve.
– Offer made in jest: An offer which the offeree known or should know is made in jest is not a valid K. Thus even if accepted no contract is created.