Sales and Leases - A Problem-based Approach, 2016a

Problem 1-8. Number from 1 through 6 the priority of the following sources of terms of the
parties’ contract:
___Course of dealing ___Course of performance ___Express terms
___Usage of trade ___Mandatory UCC provisions ___UCC default provisions
Problem 1-9. Apply the § 1-303 hierarchy to the following situations:
(1) You sell me a machine. The contract provides you will service it “every week.” You find out
that in the trade, these machines are serviced monthly, so you want to switch to monthly service.
Can you?
(2) You sell me a machine. The contract provides you will service it “regularly.” For a year, you
service it every week. You find out that in the trade, these machines are serviced monthly, so you
want to switch to monthly service. Can you?
(3) You sell me a machine every year for three years. Each contract provides you will service it
“regularly.” During each of these three years, you have serviced the machine every week. In the
fourth year, you sell me another machine. The contract provides you will service it “regularly.”
When you don’t show up the first week, I call and ask you to come service the machine. You say
you only have to service it monthly, because that is the trade practice. Are you right?
(4) In the fifth year, you sell me a machine. The contract provides you will service it “regularly.”
You service it monthly for the first six months, and I don’t object until the seventh month, when I
claim you are in breach because you serviced the previous machines every week. Are you in
breach?
1.6.6. In the hierarchy, the express terms of the parties’ agreement trumps course of
performance. However, under § 1-303(f), if the parties’ course of performing a particular
agreement varies from the express terms of the agreement, the conduct may constitute a
waiver or modification of the term. We discuss waiver and modification in Chapter 9.
Problem 1-10. An agreement provides for monthly delivery of books by Caselaw Publishing
Group to Cheapbooks.com for resale. The agreement provides for delivery on the 1st day of each
month. The publisher delivered between the 5th and the 10th day of each month for the first three
months of the agreement, and Cheapbooks.com accepted the deliveries without complaint. In the
4th month, Cheapbooks.com complained that a delivery made on the 10th is late. Is it? Does
Cheapbooks.com have any recourse?
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