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Contracts II
University of Kansas School of Law
Ware, Stephen J.

I.   FORMATION
A.        Scope of UCC Article 2
            1. What is the UCC
•   UCC Article 2 applies to the sale of goods.   “Sale” refers to buyers and sellers coming together to exchange goods or services     (buyer purchases sellers rights to some “thing”)   “Goods” refer something that is movable at the time of purchase. (goods include things like water and dentures .
•        Contracts involving “goods” are different than other contracts b/c the quantity of contracts, there are different issues w/ goods, goods are fungible versus unique, and historically goods transactions were the first to span over a long distance and need more uniformity.
 
•         Purpose – “gap-filler” – fills the gaps for the parties w/ a convenient and fairly comprehensive set of default terms on issues such as warranties and remedies
 
4 ways UCC Gap-Filler is Superceded
1.      Will not apply to a particular term if the contract itself specifies what the term should be
2.      Parties repeated dealing w/ each other may establish an agreement by implication
3.      Parties repeated occasions for performance w/in the contract may establish an agreement by implication
4.      **Industry custom prevail over UCC whenever two are inconsistent
 
2. Mixed Contracts (both goods and services)
Two Tests for Determining if UCC applies to mixed contracts
1.               Predominant Purpose Test – court decides whether the predominant purpose of the transaction is to sell goods of services
–    Use values of goods and services to determine which is the predominant purpose
2.             Gravamen of the Action Test – if the source of the complaint is with the goods, then UCC applies. If the problem is w/ the services, then the UCC does not apply even if the predominant purpose of the transaction involves goods rather than service
 
B. Mutual Manifestation of Assent
Purchase Orders 
–        Form sent by a buyer to a seller that constitutes an offer (typically used by business buyers). Typical problem is performance
–        Open Account – seller sells on credit, before an performance on the part of the buyer
 
UCC Article 2
 Applies to:
Effect:
2-207(1)
Determines when a writing w/ different terms constitutes an acceptance
An acceptance can count as an acceptance even though it

atters Included in the UCC but not in the CISG:
1.      CISG does not cover the sale of consumer goods, unless the seller neither knew nor should have known that the goods were being purchased for a consumer purpose
2.      CISG does not apply to the liability of the seller for death or personal injury caused by the goods sold
3.      CISG specifically excludes from its coverage issues of whether the sale to the buyer cuts off the property interest of third parties in the goods that were sold
 
Differences between the CISG and UCC
•            UCC will allow acceptance that contains even material alterations of the offer to count as an acceptance
•            No provision in CISG analogous w/ the UC to make its acceptance “expressly conditional on assent to the additional or different terms”
•           CISG does not stipulate what happens when a purported acceptance that does contain materially different terms is not