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

Topic                                      UCC                                                                       CISG                        Kansas CPA/Mag Moss                          Case Law                                                Restatement
Applies to:
Trans. in goods 2-102; K parties can exclude UCC in most instances unless precluded from doing so spec. by UCC-i.e. cannot K away penal damages, lack of good faith and fair dealing 1-102 parties agree to do; 2-208 course of perf.; 1-205 course of dealing; 1-205(2) usage of trade. Goods defined in 2-105- moveable at time of identification to K and things in action. 2-107- applies to minerals, oil
International transactions in goods  between countries that have signed Art. 1. – see handout for countries- controlling for those transactions. Art. 2(a) does not cover goods bought for personal, family or household use- sign. Diff. from UCC!
Consumer Transactions; Mag Moss supercedes UCC: consumer warranties
Contracts in general/ UCC gap filler through UCC 1-103: shall supplement its provisions
 
Ragus v. City of Chicago: usage of trade case: 24/case meant in that trade 24 pairs per case: Ragus should have been aware since they were holding themselves out in the business. UCC 1-205(3). 
Viva Vino: CISG d/n apply to distributorship K that d/n cover the sale of specific goods
Contracts in general/ UCC gap filler through UCC 1-103: shall supplement its provisions- persuasive; not controlling
Formation in general
C not necessary when between merchants and signed writing signed by both parties (firm offer); O + A do not need to mirror: KO rule; battle of forms. UCC formation rules: 2-204 (generally); 2-205 (firm offers); 2-206 (O + A); 2-207(Additional terms). C never mentioned in UCC; incorporated from CL through 1-103. 
18(1): A = Statement/conduct indicating assent
15(1) O effective on receipt
18(3) A effective on receipt
N/A
Hill v. Gateway: Unless indicated by language or circumstances, a purchase order acts as an offer that may be accepted either by a promise to ship or by the shipment of conforming or non-conforming goods 2-206(1)(b)
O+A+C=K; language of acceptance and offer must exactly mirror one another (MIR); money exchange hands except for firm offers
 
O: RS 24, 26, 33; A: 50; C: 71, 79; Bargain RS 3
Mirror image rule
UCC- replaces it- between merchants do not need to mirror; courts apply KO rule (2-207 cmt. 6; 2-207(3)); battle of forms- between merchants(2-207(2)); conduct of parties may be sufficient to show K despite different terms. Art. 2 allows those terms even if they are material alterations to the K. 2-207
CISG readopts CL mirror image rule- Art. 19(1)- accept. That contains additional terms are counteroffers; Exception to 19(1) is 19(2)- but purported acceptance w/ different terms not a counteroffer as long as those terms are not material alterations
List of what are material alterations is in 19(3): price, payment, quality, quantity, place/time of delivery, extent of liability. If term not listed, can look to industry practice, etc.
N/A
Ardente v. Horan- found that acceptance did not occur- wasn’t a perfect mirror image (RS CL approach);
 
Ionics v. Elmwood Sensors- conduct by both parties sufficient to est. K and non-agreeing terms thrown out KO rule- UCC approach 2-207(3)
Language in O and A must exactly mirror one another or no K formed: RS 50 (Acceptance); 39 (Counteroffers)
 
 
Topic                                      UCC                                                                       CISG                        Kansas CPA/Mag Moss                         Case Law                                                Restatement
Anticipatory Repudiation
2-610: Anticipatory Repudiation aggrieved party may: (a) await performance for a commercially reasonable time; (b) resort to any remedy for breach and (c) suspend his own performance
Diff. from RS- does not say it must be definite and unequivocable- use 1-103 to get to RS for language definition and additional things party may do under RS 250. UCC also in 2-611 says repudiating party may retract his repudiation before the time for his performance (1) unless a

ned includes any symbol executed or adopted by a party with present intention to authenticate a writing
2-201 (3)(c)- A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable.
1-205 cmt. 4: mandatory rules of law such as the SoF which cannot be abrogated by agreement (cannot agree to avoid SoF)
the CISG specifically states that a “contract of sale need not be concluded in or evidenced by writing. . .” CISG Art. 11. This provision reflects the continental approach to sales contracts. In response to the concern of several countries that believed the statute of frauds was important, the drafters created Article 96. Article 96 afforded the signatories the opportunity to “opt out” of Article 11, in order to reserve the SoF for the King parties. US did not opt out of Art. 11, so with K with US company, no SoF under CISG
N/A
Df Activities v. Brown
Admissions exception to the SoF 2-201(3)(b)- held that when the party does not admit that a K was formed, cannot sue to try to get an admission. Majority- Affidavit saying no K existed is enough for the case to be over.
 
Minority: can go to at least discovery but most courts will not go past that point. 
RS 110 types of K covered
111- executory Adminstrator
112- Surety ship provision
K for sale of land 125-129
K on a consideration of marriage
Agreements not performed within a year of their making 130
 
Reliance is a defense to SoF under common law
 
RS 90- detrimental reliance and promissory estoppel; use 1-103 to get out of UCC and go to RS to pick this one up. However, some courts read 2-201 narrowly and do not allow you to get out of it.