Common Law Contract for Civil Lawyers
Fall 2005 Professor Marston
I. Source of contract law:
UNIFORM COMMERCIAL CODE
(a) RESTATEMENT (SECOND) OF CONTRACTS (Modern)
(b) COMMON LAW OF THE VARIOUS STATES (Older)
UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS (not yet widely accepted in US)
a) Applicable law
1. Goods: different from “service”
U.C.C. § 2-105(1) GOODS
“Goods” means all things 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 . . . And things in action [claims].”
Quality Guaranteed Roofing v. Hoffmann
Rule of law:
1) Whether UCC governs a mixed contract depends on which aspect, sales or services, predominates the contract. As for contract was predominately for services rather than sales of good, UCC is inapplicable.
2) In determining the predominant nature of a mixed contract, it is helpful to look at the language, purposes, relation between good and services.
3) In the building contract, for three reasons that it is a contract for services
a) The party is described “owner” and “contractor”;
b) The price is paid on a schedule basis as the installation work progressed.
c) The dominant purpose of the contract is to install the rood and the purchase of the material is incidental to the purpose.
2. Sale: passing of titles
U.C.C. §2-106(1) – “Sale”
“A sale consists in the passing of title from the seller to the buyer for a price.”
3. title: defined by ordinary property law, a right of ownership that
es any symbol executed or adopted by a party with present intention to authenticate a writing.”
b) U.C.C.§1-103: How does U.C.C. interact with the Common Law?
“Supplementary General Principles of Law Applicable”
“Unless displaced by the particular principles of this Act, the principles of law and equity [i.e. the common law] . . . shall supplement its [i.e. the U.C.C.’s] provisions.”
c) Chart of source of contract law
State Statute Common law
UCC Restatement sections – adopted section by section by courts in each state
Ø Case Law
II. What is a contract?
i. Restatement, Section 1:
“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.”
ii. U.C.C. Section 1-201(3):
“Agreement” means the bargain of the parties in fact as found in their language or by implication from other circumstances…Whether an agreement has legal consequences is determined by the provisions of this Act, if applicable; otherwise by the law of contract.
iii. U.C.C. Section 1-201(11):
“Contract” means the total legal obligation which results from the parties’ agreement as affected by this Act and any other applicable rules of law.
b) contract ≠ promise ≠ agreement
Contract & agreement: all contracts are agreement but only those agreements which have legal