UCC-Goods-CISG-Sales but not: by auction, securities, ships or electiricty I. Is there a K? 1. Consideration a. Bargain R2d- 1.

Performance sought for a promise Performance = act, forebearance, changing legal relation 2. Promissory Estoppel a. promise b. reasonable reliance c. actual reliance d. Injustice avoided by enforcing promise e. remedy to match 3. Unjust Enrichment  Quasi contract a. benefit? b. unofficiously w/ intent $ c. Necessary to prevent harm d. No reason to know other would not consent e. Impossible to give consent 4. Promissory restitution a. past consideration benefit recognize benefit recovery to prevent injustice b. moral consideration debts barred by SoL infants bankruptcy part payment 5. Nominal Consideration-not enforceable Donative Gifts-usually not enforceable- unless relied upon II. What type of K 1. Unilaterala. promise-in exchange for action/not promise b. revocation-before performance c. performance i. substantial performance-irrevocable 2. Bilateral-mutuality of obligations a. R2di. offer 1. willingness to be bound 2. addressed to a specific person 3. terms stated w/ reasonable certainty 4. communication ii. acceptance 1. doing of act 2. giving promise 3. in accordance with the offer 4. Silence not acceptance unless a. offeree does not object b. subjective intent to accept c. previous dealings signify accept. unless notify otherwise 5. effective when received 6. must accept. w/in reason. amt time 7. mirror image-if not  c.o. iii. counteroffer iv. revocation 1. revocable unless option contract w/ consideration 2. Effective when a. offeror takes definitive contrary action b. offeree receives reliable notice of action v. not revocable if detrimental reliance I. UCC 2-207i. offer a. exchange of writing-manifestation of willingness to bargain so 3rd party understands it? b. oral agree. ok w/written confirmation-terms become K reflect oral agree. c. communication ii. acceptance a. must be definite and seasonable- “seasonable”w/in stated or reason. amt of time (90 days)-UCC “Firm Offer” iii. counteroffer a. if rejection-c.o. is just a new offer that must be accepted b. if clear or express language making conditional accept.-then ask, II (below)

II. Do additional terms become part of K? i. If 1+ are not merchants-not part of K-merely proposals to modify ii. If w/ merchants-become part of K-unless 1. offer has express language limit accept. to terms of offer 2. If offeror expressly objects to add. terms (anytime) 3. Does it materially alter terms? “material”-(surprise, hardship test) III. Different terms part of K? i. Generally no-Knock out rule-gap fillers IV. Conduct recognizes K, but writing doesn’t i. Conduct can establish K ii. Terms 1. Terms doc agrees to 2. Gap fillers (warranties, trade usage) I. Mailbox Rule i. accept. by mail creates K at moment of dispatch unless a. offer stipulates eff. when received; or b. option contract w/ consideration ii. offeree can accept if sends accept. before receiving revocation I. SOF (R2d) i. Elements 1. Not in 1 year 2. Sale of an interest in land (leases) 3. Sale of goods, $500+ ii. Must be in writing 1. identifies subject matter of K 2. States w/ reason. cert. terms 3. 1+ writing must relate same trans. (only 1 writing needs sig.) 4. Signed by party to be charged iii. Exceptions 1. reason. expec. of reliance, injustice if not enforced-“injustice”-other remedies, substantial, reason., or foreseeable reliance II. SOF (UCC) i. Elements 1. Goods $500+ 2. Req. writing indicate the sale 3. Quantity must be stated ii. Exceptions 1. Merchant confirmation 2. Spec. manufac. goods 3. Admission 4. Part performance I. Interpretation Hierarchy 1. plain meaning 2. course of performance 3. course of dealing 4. trade usage I. Adhesion K’s-courts usually hold the adhesion contract unenforceable i. Elements 1. Standard Form 2. Inequality in bargaining power 3. Take it or leave it ii. Doctrine of reason. expectations 1. Party entering K of Adhesion for X purpose can’t have X purpose negated by K (legalease) I. Parol Evidence i. Approach a. Level of integration b. Use PE to contradict, supp, or explain depending on integration 1. Not integrated-any PE 2. Partial-PE to supp. and explain 3. Complete-explain (if ambiguity) c. Any exceptions 1. explain a term 2. supp a partial integrated agreement 3. illegality, fraud, duress, mistake, no consid. 4. K written incorrectly 5. Post hoc agreement 6. Oral condition precedent I. Supplementing the Agreement 1. UCC-reasonable notification to terminate agreem. unless parties agree otherwise 2. Good faith (subjective)

i. UCC-good faith-every K must have GF-reasonable comm. stnds. of fair dealing in the trade (can’t contract around GF) ii.R2d-All K must follow GF(can contrct around GF) iii. bad faith-“foregone opportunities” 3. Warranties-UCC a. Express-“basis of bargain” b. implied warranty of merchantability-merch. implies goods are good quality and fit for ord. purpose for use (pass w/out objection in the trade) c. implied warranty of fitness for partic. purpose-buyer relies on sellers skill or judgment and seller knows of reliance i. breach-not good for buyer’s purpose d. Exclusion of warranties i. IWM-disclaimer must mention merch., if writing, must be conspicuous ii. IWFPP-must be in writing, conspic. iii. Exceptions-“as is,” examination, trade usage, course of: dealing, perf. Defenses I. Minorityi. Minor can void ii. Can’t void necessaries iii. Can’t void if tortuous conduct iv. Must void upon age 18, if not, affirms K II. Mental Incapacity i. Make restoration to other unless special circum. ii. Not voidable if party didn’t know or shouldn’t have known of MI, and K is fair iii. Cognitive-unable to understand to K, volitional-unable to act according to K III. Duress i. Economic-improper threat and no reason. alternative a. threat is improper if: crime, tort, bad faith litigation, not fair, harm X and not benefit Y, illegitimate power use ii. voidable, not void IV. Undue Influence i. excessive pressure a. unusual time, place, demand that bus. be finished at once, delay, multiple persuaders, no 3d party advisors, stmt there is not time to consult 3d party ii. undue susceptibility a. does not have to be MI, may be lack of “full vigor” iii. fiduciary relationship V. Fraud/Misrepresentation i. Fraud –intent to induce assent + maker or misrep. knows that rep. is not factual ii. Material-likely to induce RPP to assent iii. Justifiable reliance VI. Nondisclosure Duty to disclose i. material fact, and ii. disclosure nec. to prevent prev. rep. from being misrep. iii. other party is entitled to know b/c of fiduciary relationship VII. Unconscionability i. Absence of meaningful choice ii. Contract terms unreason. favor other party iii. Question of law(not for jury) iv. Must occur at time of contract-event after can’t result in unconscionability VIII. Public Policy i. Covenant not to compete if broader than necessary to protect employer interests, undue hardship, public would be injured ii. Balance interest in judgment-parties expectations, forfeiture iii. Against public policy interest against enforcement-strength of policy, seriousness of misconduct IX. Mistake 1. Mutual mistake-shared mistake of basic assump. Of facts, adverse party can rescind unless bore risk of mistake 2. Unlateral-nonmistaken party knew or should have known, mistaken party can rescind

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