American Contract Law for a Global Age, 2017a

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except for personal use. If, however, Burge buys his vehicle off the lot at Snyder’s Used Car Mart, Snyder in that case qualifies as a merchant while Burge does not. Taking the facts one step further, suppose that Burge is actually a used car buyer for the local auto auction. In that case, the sale occurred “between merchants” because both sides both sides of the car sale qualify as merchants. UCC § 2-104 defines the term “merchant” in subsection (1), while subsection (3) describes when a transaction is “between merchants.” Both concepts will show up in the cases in this unit, so you would do well to examine UCC § 2-104 briefly before continuing. In this unit, we will see two of the instances where merchant status matters under Article 2. The first is the creation of a warranty that goods sold by a merchant are of a certain quality, a warranty known as the “implied warranty of merchantability,” contained in UCC § 2-314. A second place where merchants make an appearance in this unit is in section 2-207, the other major topic in this unit. Shattering the Mirror Image Rule. Section 2-207, it is fair to say, changes everything that you think you know (and we just taught you) about the mirror-image rule under the common-law of contracts. Indeed, one could fairly say that section 2- 207 smashes the mirror into thousands of shards capable of bloodying the hands that touch them. Section 2-207 was drafted to deal with a real problem under the common law. Because the mirror-image rule requires that contracting parties agree to the exact same terms in order to form a contract, the last party to propose terms before performance of the contract always controlled the terms of the deal. Because the last party gets the upper hand in dictating contract terms in this situation, this mirrorimage requirement is also frequently referred to as the “last shot rule.” While that was not necessarily a fair way to select among conflicting terms on which parties did not agree, it at least has the virtue of being simple. Section 2-207, as you will see, replaces mirror-image offer and acceptance with a regime where non-identical responses to an offer are treated as acceptance of the offer, along with proposals to modify the contract. At common law, of course, a non-identical acceptance would be treated as a counter-offer. Section 2-207 has proved to be one of the most controversial contract-law innovations in UCC Article 2, as well as one of the more challenging concepts for students to understand. As in the previous unit, we have edited citations to the Uniform Commercial Code in the cases that follow so that they will refer you to the “Official” version of the UCC found in many statutory supplements (or in online databases, including the freeaccess Legal Information Institute: https://www.law.cornell.edu/ucc). We believe you will find it helpful to see the statute separately, even where courts provide you with a lengthy quotation. Doing so will enable you to see the larger context in which particular sections of the code operate. ______________________ ______________________________________________________________________________ 196 CHAPTER IV: ALTERNATIVE REGIMES
Cases and Materials A. Merchants FOLEY v. DAYTON BANK & TRUST Court of Appeals of Tennessee 696 S.W.2d 356 (Tenn. Ct. App. 1985). CRAWFORD, Judge. In this non-jury case, plaintiffs, Marvin A. Foley, William E. Ball, III, and Johanna M. Foley, buyers of a used truck from defendant, Dayton Bank and Trust, appeal from the order of the Chancery Court dismissing their suit to rescind the transaction. Plaintiffs’ complaint alleges in substance that they purchased a 1977 International Transtar II truck from Dayton; that Mayfield, the representative of the bank handling the transaction, “stated emphatically that the motor vehicle was ‘in good mechanical condition’ and in particular assured the plaintiff the engine in the vehicle was in excellent condition at the time of the purchase;” and that plaintiff relied on Mayfield’s representation and expended large sums to prepare the vehicle for its proposed use. The complaint further avers that the vehicle broke down as the result of engine trouble after less than 250 miles of operation, thus substantially impairing the vehicle’s value, and that repairing the engine would require the expenditure of at least $6,400. Plaintiffs’ complaint states that they rightfully revoked acceptance and now seek the return of all monies paid plus other described damages. The record reflects that the bank had previously financed the large trailer-type truck in question and had acquired title thereto after repossession pursuant to its financing papers. The truck had been on the defendant’s lot for several months prior to its purchase by plaintiffs. It was eight years old and had been driven approximately 447,161 miles. Although the defendant bank engaged in the business of financing automobiles and related-type motor vehicles, it did not normally finance trucks of this type. [The court first affirms the trial court finding that Dayton Bank & Trust did not create an “express warranty” by any statements about the condition and quality of the truck engine.] Plaintiffs now assert that there was an implied warranty of merchantability as provided in UCC 2-314 which states in part: (1) Unless excluded or modified (§2–316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind . . . . ______________________________________________________________________________ UNIT 11: UCC MERCHANTS AND TERMS 197
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Notices This is the first edition o
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About CALI eLangdell Press The Cent
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Unit 19: Conditions ...............
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hired Corleone family thugs 4 or an
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described herein, and agrees to fre
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6. MARY BETH WHITEHEAD, Surrogate,
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Surrogate and WILLIAM STERN, Natura
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10. Consider paragraph 5. Should th
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The two court opinions that follow
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Venue Venue is a concept of place
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Their first child, Ryan, was born o
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Subsequent to entering into the sur
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The sixth and final argument sugges
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It is argued by amicus that the $ 1
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no stated public policy on surrogac
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IN RE BABY M Supreme Court of New J
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adoption; the sole purpose of the c
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The surrogacy contract violates the
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Problems Donald Donor is a single,
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An Introduction to CONTRACT FORMATI
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particular obligation? In Europe, i
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The evidence is undisputed that pla
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After some negotiation a price of $
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The answer of A.H. Zehmer admitted
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no, that is beer and liquor talking
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on the Zehmers as well as on himsel
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offer and of the reward and its sub
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your professor. You will come acros
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car title you’re holding there. I
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In the modern world, the question o
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pair of sunglasses. The drumroll th
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This letter was apparently sent onw
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Because these cases generally invol
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teenager’s schoolmates gape in ad
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Review Question 3. Note how Judge W
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cash in ten days,” it must be dee
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“Before a contract can be complet
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for the purpose of doing the work a
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accidentally being bound to unwante
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Here, we have a counter-offer. The
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parties.” Metropolitan Sports Fac
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court. See Minn. R. Civ. App. P. 10
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Thus, it clearly appears that the d
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with distribution. The parties ulti
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all essential terms. See, e.g., Sit
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Enclosed, we beg to hand you contra
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to call for an acceptance particula
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than identify himself, Dealer says,
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offer.” More often, they nod, sha
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The next attack will be my end, I a
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from all the facts and circumstance
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Notice to the agent, within the sco
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2. Written approval by United State
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contrary in the offer, the acceptan
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HOBBS v. MASSASOIT WHIP CO. Supreme
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stranger may impose a duty upon ano
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contract in this case come into exi
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An Introduction to CONSIDERATION Th
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and you are free to change your min
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Ridge Runner that she lacked the pr
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We conclude that the territory enco
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He further answered, that it was gi
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This action was brought upon an all
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consideration does in fact benefit
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Review Question 5. The promisors in
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The distinction between such a cond
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Vincent refuses. Fritz eventually s
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enefit was money received, the subs
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they stopped work in a body, and de
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supervise this building. Under the
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The day before trial the plaintiffs
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General rules of law established fo
Page 154 and 155: For the foregoing reasons we are al
Page 156 and 157: WEBB v. McGOWIN Court of Appeals of
Page 158 and 159: 100 P. 631 (Kan. 1909); Edson v. Po
Page 160 and 161: McGowin’s adult child, would that
Page 162 and 163: efuses, saying, “We had a deal.
Page 164 and 165: Giles had no right to use it. But t
Page 166 and 167: BLICESTER: That’s crazy. JUDGE: N
Page 168 and 169: A. She took the piece of paper and
Page 170 and 171: According to the undisputed proof,
Page 172 and 173: We recognize that upon different fa
Page 174 and 175: was discussed with compensation to
Page 176 and 177: CONRAD v. FIELDS Court of Appeals o
Page 178 and 179: her job at Qwest and enroll in law
Page 180 and 181: Seth Wyman’s estranged son Levi i
Page 182 and 183: An Introduction to ALTERNATIVE REGI
Page 184 and 185: consistency. Some provisions have p
Page 186 and 187: TOUSLEY-BIXLER CONSTRUCTION CO. v.
Page 188 and 189: of goods within this Article whethe
Page 190 and 191: differently from other contracts? F
Page 192 and 193: nine units was delivered and paid f
Page 194 and 195: think they have struck a deal.” Q
Page 196 and 197: more sense for contract formation t
Page 198 and 199: COMMERCIAL CODE § 2-206:12 (3D ED.
Page 200 and 201: face of which appears the notation,
Page 202 and 203: Problem 10.3 On June 1, the sales d
Page 206 and 207: [T]he plain reading of the statute
Page 208 and 209: not lubricated in any way. Without
Page 210 and 211: we also note that Best Bolt’s vic
Page 212 and 213: (c) are fit for the ordinary purpos
Page 214 and 215: This purchase order represents the
Page 216 and 217: provision would cause no “surpris
Page 218 and 219: FLENDER CORPORATION v. TIPPINS INTE
Page 220 and 221: well that the reservations each par
Page 222 and 223: The alternate approach, recognized
Page 224 and 225: (a) Is Ivy League University a “m
Page 226 and 227: and ratified a treaty called the Un
Page 228 and 229: (2) The fact that the parties have
Page 230 and 231: e. Manufacturer in Texas contracts
Page 232 and 233: an authorized distributor of Defend
Page 234 and 235: undisputed that each of these alleg
Page 236 and 237: Treaty Text Note. Read Articles 18,
Page 238 and 239: *4 (S.D. Ohio Mar. 26, 2009); see a
Page 240 and 241: perform a substantial part of his o
Page 242 and 243: shall be settled by binding arbitra
Page 244 and 245: An Introduction to CONTRACT DEFENSE
Page 246 and 247: ___________________________________
Page 248 and 249: which extended even to being able t
Page 250 and 251: Dickerson, 72 Ala. 318 (1882). In t
Page 252 and 253: loss from the transaction, includin
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this definition. Whether other area
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ORTELERE v. TEACHERS’ RETIREMENT
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medicine, this physician “judged
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The avoidance of duties under an ag
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7. What is my total service credit?
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Review Question 5. In McGovern v. C
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will pay the full listed price of $
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endeavoured to be upheld by Perjury
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Y Contracts that cannot be performe
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you think the consideration doctrin
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NICKELS, J., dissenting. I disagree
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contracts. What is the real purpose
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At the ensuing trial, defendant den
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There may be cases in which it woul
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professional. Things were really ge
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GUENTHER v. AMER-TEX CONSTRUCTION C
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(b) Subsection (a) of this section
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Problem 14.3 Van der Rohe USA, Inc.
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sold, the terms of the sale, the na
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the judgment of a vulnerable party.
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The first issue is whether the labe
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some point or on some occasion it w
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As a matter of law, based on the fa
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or, more particularly, in cases suc
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“deprived Loral of its free will.
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As to mistake, the amended complain
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In Weger v. Rocha, 32 P.2d 417 (Cal
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I had brought back the topaz, and h
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May 5, 1886, plaintiff went out to
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arren cow is substantially a differ
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prior to the sale was Buyer aware t
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Against Public Policy. In many situ
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HANKS v. POWDER RIDGE RESTAURANT CO
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interest adversely, and identified
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illogical, in these circumstances,
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_____________________ Review Questi
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construed against the employer). Th
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acquired by virtue of effort and ex
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_____________________ Review Questi
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Mere inadequacy of consideration wi
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District of Columbia Court of Appea
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In determining reasonableness or fa
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Problems Problem 16.1 The Californi
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position to all of his patients (or
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An Introduction to TERMS AND INTERP
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contract itself. Thus written docum
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consideration of the simultaneous a
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the contract on the basis of which
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The subject-matter of the written c
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understandings or agreements.” 3
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little time to compose it . . . . A
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expressed in the writing. KN Energy
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Article 8 UNITED NATIONS CONVENTION
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contracts or that parol evidence re
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percent (50%) protein, as tested on
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get the deal they intended, and the
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Cases and Materials W.W.W. ASSOCIAT
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do so because of some identified am
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The truth is that whatever virtue a
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Absent strong public policy conside
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FRIGALIMENT IMPORTING CO. v. B.N.S.
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persuasive if sustained by the reco
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and there is force in defendant’s
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RANDOM HOUSE, INC. v. ROSETTA BOOKS
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language of the grant was broad, en
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F.3d at 1095, would conclude that t
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When Hurricane Rubin strikes the lo
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the business. The contract was sile
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party argues ambiguity), the loan f
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accordance with the terms of this c
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of the advance payments, or the num
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imbibe alcoholic beverages and stil
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significant satisfied requirement o
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TOWN OF FAIRFIELD v. D’ADDARIO Su
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damages. The notice of Kant’s act
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who had turned down lucrative offer
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were to suggest some express provis
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notice of ninety days. The plaintif
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Review Question 2. What was Judge C
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exercising discretion under the con
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NANAKULI PAVING AND ROCK CO. v. SHE
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§ 490:1-102(2)(b). The drafters of
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trade existed in Hawaii in 1969 and
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1978) (unpublished opinion) (holdin
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Plaintiff does not contest its stat
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product. The concept of “merchant
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discovery by defendant of the defec
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Unfortunately, Plumber’s work doe
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An Introduction to PERFORMANCE AND
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doctrine, so that close-enough perf
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the number of joists used in all th
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JACOB & YOUNGS, INC. v. KENT Court
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transgressor must accept the penalt
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was for requiring this kind of pipe
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The evidence is undisputed that the
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eing a new roof. We are not prepare
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This case is simple if the perfect
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yacht remained located at SIYS’ f
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happens by mere operation of law; s
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Problems Problem 21.1 Actor is a ve
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processor for the same price as the
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venue. Under Paradine v. Jane, this
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At trial, the court allowed IH’s
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In order for a supervening event to
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The court interpreted this passage
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economic circumstances sufficiently
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A cancellation order given by her o
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e entitled to judgment. They certai
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performance is excused when unfores
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caused to communications and transp
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Following the closing of the above-
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performance. 407 East 61st Garage,
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Canal, across the Mediterranean thr
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An Introduction to REMEDIES We now
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multiplication and (very rarely) di
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It was also erroneous and misleadin
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and we turn to the question of whet
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testified that the total gas, oil,
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BRANDEIS MACHINERY & SUPPLY CO., LL
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PEEVYHOUSE v. GARLAND COAL & MINING
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explanation as to why a measure of
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work; however, where the contract p
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clear and unambiguous and the parti
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pool contractor to finish the pool
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Nevertheless, the English courts he
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perform the work. As Lee failed to
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UNITED STATES ex rel. COASTAL STEEL
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emanded for those findings. When th
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the substance is that the plaintiff
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the agreement would continue on a m
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Review Question 7. Note the paralle
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product that would be fully functio
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car to the Country Music Museum for
Page 528 and 529:
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Restatement (Second) of Contracts s
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Harrahs brings the instant action a
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contest payment for same if constru
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This is in accord with the earlier
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Defendant’s sole defense to this
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particular. Certainly, none of the
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sustained where, from the nature of
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ut will be happy to try to help in
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the full $7,500 price of admission
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Problem 25.2 Mina is a second-year
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other types of specific performance
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imposed as the remedy for breach of
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certainty, then S&M should be compe
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There is simply no requirement in t
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“other proper circumstances” th
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fence plaintiff erected to discoura
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y no means certain, at the time of
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cannot use that method of self-help
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contract price of $533,000) that La
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teacher resigned at the beginning,
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eaching its lease with Perez by the
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An Introduction to CONTRACT NONPART
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fraud, mistake, and illegality. If
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may be the diversity of opinion els
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given him by the will for a particu
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since Lawrence v. Fox in a desire t
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workers’ compensation benefits),
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to divide a lawyer’s loyalty betw
Page 592 and 593:
Review Question 9. Lawyers do many
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Problems Problem 27.1 Hank and Hild
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Page 598 and 599:
interested in jumping into such a b
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limitations barred the claims. She
Page 602 and 603:
assigned their claim to recover the
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application to this contract as it
Page 606 and 607:
A breach of contract has been defin
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moved to Arizona and had no further
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It is evident from the express lang
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contracted to assume, and the assig
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March 1 for the conveyance of Purpl
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