American Contract Law for a Global Age, 2017a

Unit 11
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ALTERNATIVE REGIMES
Part Two
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Uniform Commercial Code – Merchants and Terms
FOCUS OF THIS UNIT
Article 2 of the Uniform Commercial Code applies to all sales of goods, even if
(for example) you sell your classmate a used comic book for one dollar. As to its
applicability, the UCC does not have a minimum price or any particular
qualifications for buyers or sellers. The transaction need only be one in which title to
goods passes from the seller to the buyer for a price. That being said, Article 2 does
contain several special rules that apply only to merchants. This unit will introduce
you to the concept and some of the implications of a there being a UCC “merchant”
on one or both sides of a sales transaction. We will also consider a topic that has been
the bane of generations of students (and professors) of American contract law—the
so-called “battle of the forms” under UCC § 2-207. Suffice it to say for now that section
2-207 throws out the “last shot rule” of common-law contract formation and replaces
it with . . . something different. It is a little bit complicated.
Merchants and Additional Standards. A recurring tension in American law—
not just in contract law—is the question of whether the law should treat all parties
the same regardless of their knowledge or sophistication. The question is frequently
resolved both ways. A healthy dose of equal treatment is embodied in Theodore
Roosevelt’s famous declaration that “no man is above the law and no man is below
it.” On the other hand, some situations seem to call for recognition that some parties
are in a position where holding them to a higher standard is reasonable, reflecting
the famous Biblical admonition that “to whom much is given, from him much will be
required.” Or, as football coach Tony Dungy put it, “I need to treat everybody fairly,
but fair doesn't always mean equal.”
Article 2 addresses this tension by creating a special category of buyers and
sellers known as “merchants,” essentially people or organizations who regularly deal
in the goods or practices of selling goods. For example, if law professor Snyder sells
his used car to law professor Burge, the transaction is governed by the UCC, but
neither party is a merchant. Snyder is not a car dealer and Burge does not buy cars
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UNIT 11: UCC MERCHANTS AND TERMS 195