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Formed by agreement, including conduct.
Where communications do not reflect agreement, contract may be formed by conduct, delivery and acceptance of goods, or by payment and acceptance.
Battle of the Forms
Acceptance with terms additional to or different from those of the offer forms of the contract.
Between merchants, additional non-material terms in acceptance or confirmation modify the contract unless objected to within a reasonable time.
Knock-out rule: Different terms knock each other out and replaced with gap filler.
Statute of Frauds
Enforcement of contracts for price of $500 or more requires signed memorandum indicating a contract and quantity.
Merchant's Confirmation Rule
Between merchants, receipt of signed confirmation satisfies SOF as to both parties unless objected to within 10 days.
Any description that becomes basis of bargain creates EW.
Implied Warranty of Merchantability
Sale by merchant who deals in such goods creates IWM that goods will be fit for ordinary use.
Risk of loss
Unless 3rd party carrier involved, ROL passes when buyer obtains possession of goods from merchant.
ROL presumed to pass to buyer when goods delivered to 3rd party carrier (shipment K) unless parties agree by FOB Buyer's Place term that ROL passes upon delivery at destination.
S's duty to tender conforming goods at point where ROL passes. B's duty to pay for conforming goods that are lost after risk passes.
Buyer's Rejection under Single Delivery K & Installment
May reject any non-conforming goods under single delivery K (perfect tender rule), but only for substantial non-confirmity under installment K.
Requires timely notice. Failure to reject=acceptance. Acceptances requires B to pay S full K price.
Buyer's Remedies for Non-Delivered or Rejected Goods
Cover (cover less K) or Market (market less K), plus consequentials and incidentals less expenses saved.
Must be reasonably foreseeable by seller at time of contracting and unavoidable by buyer.
Buyer's Remedy for Breaches of Warranty for Accepted Goods
Value of conforming goods less Value of accepted goods plus C&I
A person who regularly deals in good of the type sold or who hold themselves out as having skill or knowledge peculiar to the practices or goods sold.
Any person in business or profession.
K will include terms implied by trade usage, course of dealing, and course of performance unless expressly contradicted by K terms.
UCC Gap Filler
- Price= reasonable price @ time of delivery
- Places for tender= seller's place
- Time for perf= reasonable time
- Payment due=time of delivery
Implied Warranty of Fitness for a Particular Purpose
Goods sold by seller who is aware buyer is relying on seller's skill to provide goods fit for buyer's particular purposes are warranted to be fit for that purpose.
Disclaimer of Warranty
Express Warranties that have become part of bargain= no waiver possible.
IWM: "as is", must be conspicuous.
IWFPP: written & conspicuous
Merchant/consumer: any implied W must be disclaimed with particularity re: qualities
Limitations of Remedy
K may disclaim liability for consequential damages, only if not unconscionable.
Exclusive remedy of repair or replacement. If failure to provide remedy, B may sue for damages.
Unequivocal statement that breach will happen.
Other party may cancel K and sue for breach.
Upon reasonable grounds of doubt, party may demand assurances of performance and suspend performance until given. If not given within reasonable time or 30 days, may treat as repudiation, cancel, sue for total breach.
Revocation of acceptance
Acceptance must have been induced by difficulty of discovering defect, defect substantiall impairs value, buyer gives notice of revocation w/i reasonable time, and buyer can return goods substantially unchanged.
Destruction of identified goods, impracticability
To tender conforming goods or cure before time for performance lapses.
To inspect, accept, and pay for conforming goods. Acceptance occurs when buyer indicates acceptance or does not act inconsistent with ownership.
Duty regarding Rejected Goods
Buyer has duty to care by following seller's reasonable instructions and selling goods if perishable.