2nd 40, 42: rejections, counteroffers, and revocations valid when received; 46

Some have to be in writting i) UCC more than $500; ii) rest - sale in land, CT can not be fully performed in one year

merchants have different rule (follow up letter can be acceptd w/o signature)

Same Factors as Mutual Mistake + unconscionable; or other party had reason to know of mistake

Party who wants CT cancelled must have actually been injured; see Sherwood, 82 (ruling that party seeking to void CT was actually injured b/c price of the cow was much greater than what it was sold for)

advitesor can change mind b4 acceptance; See Lefkowitz; 30 (holding that offeror can revoke the offer before acceptance)

if terms of quantity are not filled in, or ambigious - default term is zero; 31

CA says written agreement that silence is agreement is no good; 35

performance activates acceptance. performance must be in a reasonable time, if no time limit stated; 40

may stipulate acceptance by verbal/written promise; 2nd 30, 32; 40. Promisee must follow those instructions

Adams v Lindsell; 45, every second offer is in the mail, it is a good offer

offeror can ct around this aspect of mailbox rule (so mailbox rule is default rule); 46 (also has justifications for this rule)

if acceptance arrives first, it is accepted. if acceptance arrives after, it is a counter-offer. 2nd 40; 46

Mailbox rule for option K: acceptance of option not valid until received (b/c option K do not allow for revocability); 2nd 63; 46

counteroffer includes: offeree submitted a 'qualified/conditional acceptance'

does not include 'unqualified acceptance' (e.g. won't you take less?); or inquiry regarding possibility of deff terms, request for better offer, or comment; or 'contrary statement' - e.g. efferee may state he will keep offer under advisement, but if offeror wants to close bargain at once, offeree makes a specific counteroffer

even non-material changes are fatal to establishing acceptance, and thus K; 48

2nd 59; reply that purports to be acceptance, but adds qualifications or requires performance of conditions is not acceptance, but counteroffer

2nd 61; acceptance that requests changes is not a counter, unless acceptance is made to depend on assent to new terms (but note, added term may be something in original offer)

material terms: price, quantity, delivery, choice of forum (DTE Energy, 49); aslo limit on damages (Hydraform Products v American Steel, 182)

if different terms, jurisdictions are split: some will apply them like proposals for added terms, and look to UCC2-207(2); others will use the knock-out rule and apply UCC2-207(3)

Point of 2207 was to reconcile battle of forms; comment 1 says 2207 applies to oral agreements later made explicit by writing

purchaser is the master of the offer, and added terms must be expressly accepted by him

vendor is the master of the offer, and purchaser accepts by performing acts needed for acceptance; see hill 53

Rich Hill; 53; if CT has only one form, UCC 2-207 does not apply. "ct is formed w/ documents that arrive in box as long as there is an accept or return device"

Netscape;Crossmedia; 56-7: ct online not 'accepted' unless accepting party has clear and obvious knowledge of terms

if price not settled by time goods delivered, often apply reasonableness standard; UCC 2-305; 31

Minority rule: interpret ct against drafter to incentivze better CT writing; 31

"clarifications are needed" Empro MFG 62 - often is a death nail

See Empro; 65 - whole CT is agreement to agree. no terms get into CT; see also Delicatessen; 62 (renewal term 'may be mutually agreed upon' - no agreement = no ct)

see Dixon; 66 - bank agrees to negotiate w/ P about loan modification. owes duty of fair dealing

even if terms are not clear and definite injured party can claim promissory estoppel and receive less damage; see Blinn 60 ('we have at least five more years of work' may induce reliance on emp; red owl 62 (buyer is dragged along for months making irrevocalbe decisions); see Dixon 66 (bank agrees to 'consider' P for a loan mod if he stops making payments, and P relies on that causing a foreclosure. P uses P.E. and receives remedy of reliance)

CT w/ infant is voidable; See Bowling, 78 (ruling that infant who signed ct to buy car is voidable and may be disaffirmed)

Remedy (majority view) is giving back object in object's current state; see Bowling 78 (infant bought car, bearings went bad, infant has to return car as it is, not as it was when bought)

Necessity: where necessities are sold/delivered to an infant or person by reason of mental incapacity or drunkenness is incompetant to ct, he must pay reasonable price" see bowling, 78 (car dealer has burdent to show car was a necessity for infant)

minor can dissaffirm ct when he becomes adult w/in reasonable time; 79

includes subject matter of sale, price, some collateral fact materially inducing the agreement; see Sherwood, 82 (ruling that barren cow, which was not barren voided CT due to mistake)

does not include: market conditions, or difference in quality. see rest 151-154; also Sherwood 82 (stating difference in quality will not constitute a mistake); see Lenawee County Board of Health, 84 (stating a mistake does not relate to an erroneous estimate about a prediction as to a future occurance or non-occurance)

see Lenawe County Board of Health 82 (holding that parties made a mutual mistake as to the nature of a house that actually has zero value, but buyer assumed risk per the language of the ct. buying 'as is')

w/ mistake, injured party CAN keep ct. aslo w/ mistake, there are defenses to the defense of mistake.

Rescind Ct: i) parties return to status quo; ii) any benefit gained by P would have to be returned; ii) D pays back any money received from P plus interest; iv) also pay for labor/services rendered by P

no general duty to disclose everything you know, but can not impose on other party; see Laidlaw, 89 (ruling that buyer's silence in regards to war of 1812 is not per se misrep, but it could indicate one party is imposing on another. also note law tends to avoid giving a remedy to a party who is injured b/c of market conditions - see mistake); see also Warren G, 91 (silence on a material fact like termite damage in house can not be held silent)

vendor has affirmitve duty to disclose material facts where a) nec to prevent previous assertion from being a misrep; b) disclosure would correct a mistake of other party as to a basic assumption, and failure to disclose would amount to failure to act in good faith; c) disclosure would correct a mistake of other party; d) other party entitled to know the fact b/c of a rship of trust and confidence btw them; Warren G, 91 (holding that buyer has right to know about termite damage in home that seller knows of)

if silence in regards to knowledge in public record, ct still good- 2nd 161, comment 10

2nd 164, exception if 3rd party is responsible for conveying misrep, and other party did not know about that.

the method in which non-disclosed data is collected is to be considered when determining misrepresentation; 2nd 161 comment 11

ct made in duress is voidalbe; See Rubenstein, 95 ("if conveyance is procured by means of duress, the conveyance is inoperative and voidable")

Duress Def; 1st rest 492; "was person complaining induced by the duress or undue influence to give his consent and would not have done so otherwise"; See Rubenstein, 96

means themselves lawful must not be so oppressively used as to constitute an abuse of legal remedies

existence of eco duress or bizz compulsion exists w/ proof that 'immediate possession of needful goods is threatened' or more particularly, by proof that one party to a ct has threatened to breach the agreement by withholding goods unless other party agrees to some further demand; see Austin Instrument, 97 (holding that contractor who has tough penalty for delayed items w/ navy was under eco duress from subcontractor who wanted to increase price on already agreed upon ct)

threatening breach of CT is not sufficient. threatened party must also attempt to obtain goods from another source of supply; see Austin Instruments; 98 (holding that the contractor had tried to find other sources to provide materials, but was unable, so subcontractor's threat of breach was economic duress)

2nd 174, compulsion by physical force prevents CT formation; 2nd 175, compulsion by other means makes CT voidable

meaningful choice def: i) determined by all factors; a) can be negated by gross inequality of bargaining power; b) manner in which CT was entered into is also relevant.; Ora Lee Williams, 100, (ruling that there was procedural unconscionability b/c there was gross inequality of bargaining power btw corporation and woman of limited education, and CT was complex document with fine print that Willaims was unlikely to understand)

a party can show a ct is conscionable if terms bear some reasonable rship to risks of the bizz; 101, Note following Ora Lee Williams in CB

shown by: a)lack of undertanding of the ct terms arising from inconscipious print/use of complex, legalistic langauge; b)disparty in sophistication of parties; c) lack of opportunity to study the ct and inquire about ct terms; ex S.D. Miss (note after Ora Lee, 101)

shown by: a) great imbalance of parties relative bargaining power; b) stronger partys terms are unnegotiable; c) weaker party prevented by market factors; d) timing or other pressures from being able to ct w/ another party on more favorable terms or to refrain from ct at all; ex S.D. Miss (note after Ora Lee, 101)

in regards to (ii); see In re Louis; 102 (holding ct unconscionable that offers to find lawyers for $400, when in fact the service is free)

oppression: inequality of bargaining power which results in no real negotiation and absence of meaningful choice; Misty Ferguson, 103 (ruling that where a party in unequal bargaining power is presented with an offending clasue w/o opportunity for meaningful negotiation then oppression/proceduracl unconconsionability are present)

if agreement is too one-sided, it will be substantively unconscionable; see Misty Ferguson, 104 (holding emp ct w/ a one sided arb agreement, arb fees, and one-sided discovery provision is unconscionable)

Remedies for unconscionability/against public policy: a) rewrite unconscionable parts; b)eliminate whole unconscionable aspect

parties justified expectations; any forfeiture that would result if enforcement were denied; any special public interest in enforcement of a particular term

a) strength of that policy as manifested by leg or judicial deciions; b) liklihood that a refusal to enforce the term will furhtur that policy; c) seriousness of any misconduct involved and the extent to which it is deliberate; d) directness of a connection btw misconduct and ther term

no remedy; see Sinnar, 105 (holding that parties who made illegal ct to establish an illegal alcohol licsense were not due any remedy)

c) court can render ct to make it enforcable, unless covenant was not made in good faith (burden of proof on emp);(con is that may encourage emp to create overbroad covenant, and have court rewrite)

a) if ct is overbroad, it is unconscionable and whole thing gets thrown out (con is that parties can not ct);

FAA makes arbitration valid, but unconscionability provides a defense, see cases cited here

See Forrest Ferguson, 141 (holding that an evidentiary condition in a 'storekeepers burglary policy' to show marks on a broken safe was 'beyond the reasonable requirements necessary to prevent fradulent claims')

see Jacov v Kent, 144 (holding that CT had express langauge requring reading pipe, but it was an insignificant deviation, there will be injustice if that party lost the CT b/c of the labor they put into it)

makes the CT voidable, and restituion damages are the reward

b) promisor's repudiation is of a material part of the agreed exchange

see Hochster v De La Tour, 158 (holding that injured party who replaced repudiated ct w/ another ct will have money damages decreased by the amount the new ct brought in)

see Hochster v De La Tour, 158 (holding that injured party was excused from duties once ct was repudiated, and injured party could utilize that time to est a new ct, but $ from new ct will be subtracted from $ damages injured party seeks)

see Hochster, 158 (holding that injured party can sue immedaitely once other party repudiates)

if party states great difficulty in completeing performance, it is not the same as repudiation

if A buys goods from B, and B repudiates after receiving part payment, A can sue to get that $ back

see Taylor v Johnston, 159 (holding that injured party did not rely on first repudiation, and repudiating party retracted before performance was due, so ct not repudiated)

see Hochster, 160 (holding that stud was in the same state as the mares it was contracted to breed with, so there was no implied repudiation [no question that there was not an express repudiation])

see Hochster, 158 (holding that party repudiated by cancelling the ct)

2nd 251, if injured party is unsure that conduct of other party constitutes repudiation, he can request 'assurance of performance', and if other party confrimed CT would not happen, P can sue.

note 2nd 251 - can request assurance of performance. see nuance

see Curtis bros, 161 (holding that equity is appropriate when injured party can not proucre needed goods, tomatoes, from a substitute source

see Curtis Bros, 161 (holding that $ damages would be inadequate, bc injured party needed tomatoes, and w/o CT with the breaching party, injured party would be vulnerable to whatever tomatoes were left in the market, and may be unable to procure tomatoes at any price in time for the season)

if repudiation has been relied on, or injured party affirmitvely confirms that they understand CT is off, Ct is final; see Hochster, 158 (holding that injured party relied on repudiation, and it was final)

see Northern Indiana Public Service, 164 (holding that coal mine, who was injured party in CT breach w/ D, would not receive specific performance b/c $ damage adequate, and even if specific performance was issued, the parties would be incentivzed to reach a deal resulting in the mine closed anyway, b/c breaching party can receive energy cheaper elsewhere.)

see Northern Indiana Public Service, 164 (holding that speciific performance of a ct for coal mining would be a disservice to the public, b/c breaching party can receive energy cheaper elsewhere, and specific performance ruling would still result in the mine being closed, thus specific performance would be a greater cost on society than benefit received)

see also Northern Indiana Public Service, 164 (holding that $ damages were adequate b/c it was possible to calculate the money damage the injured party suffered; e.g. value of CT [amount of coal x price] and subtract cost of operation)

if equity is cheaper for society, equity should win; see Northern Indiana Public Service, 164 (ruling that specific performance for a breached coal mining CT would be costlier to society than $ damage)

see also Walgreen Co v Sara Creek, 166 (also ruling that parties are better able to determine costs than the court, so more appropriate to give specific performance and let parties hash it out)

see Curtis Bros, 161 (holding that injured party would suffer irrepable injury if D did not sell P tomatoes in time for high season)

compare NIPSCO and Walgreens, 164-167 (court ruled against specific performance in NIPSCO, which would have required positive injuction (keeping mine open) v Walgreen, specifi performance was more appropriate for stopping an act (allowing a pharmacy into a mall))

see Walgreen, 165 (holding that a CT regarding the use of land in a mall receives speciific performance when CT was breached, b/c land is unique)

i) bilateral monopoly (may create breakdown in CT)

court doesnt have to supervise and avoid 3rd party effects

when analysis is not clear if $ damage or equity is more efficeint, go with money damages

see Amer Mech v Union Machine, 167 (holding that usual damage calculation for CT breach is CT price - market value on date of breach)

see Amer Mech v Union Machine, 167 (holding that actual damages are appropriate only when foreseeable at inception of CT, which was the case here, b/c D knew P was in financial trouble and foreclosure was foreseeable)

see Amer Mech v Union Machine, 167 (holding that CT damage was not sufficient, bc P suffered more than that due to a foreclosure sale, which was foreseeable. E.G. assume CT price is 100, MKV 80, and FC 40. if P received only CT damages, he would receive 20 (diff btw CT and MK) and 40 from foreclosure sale = 60; compared with 20 (diff btw CT and MK) and 80 from selling on market = 100)

see dicta in Amer Mech, 168 (stating that P had a duty to mitigate and try to sell property on market); 2nd 350

see New Era Homes, 169 (holding that injured party would receive actual loss calculated by (price of ct, less payments already made by breaching party, and less the cost to get project completed)

if property sold in foreclosure, that does not constitue MKV, see Amer Mech, 167 (holding that a foreclosure sale was not representative of MKV, and

see Jerry Locks v Gerald Wade, 170 (holding that injured party lost chance to sell a second jukebox, thus even though after D breached, P was able to sell the jukebox, D would still have to pay CT damage - CT price less cost of performance)

calculation: direct loss + incidental loss + consequential loss - loss avoided

see New Era Homes, 169 (holding that intent of the parties using rules of interpretion, express langauge, trade usage, etc indicate that the injured party would receive actual loss damages as opposed to lost installment payment)

injured buyer has no duty to mitigate damage, see Reliance Cooperage, 173 (holding that party opposing repudiation by seller in CT for white bourban staves has no duty to mitigate damage, and may sue for CT damage at time of performance - measured by difference btw CT price and MKV at time of performance)

see Reliance Cooperage, 173 (holding that injured party in CT for bourban staves would receive difference between CT price and MKV at time of performance)

a) sue repudiating seller then and receive diff btw MKV and CT price at time of repudiaiton

b) wait for time of performance, and sue for damages measured by diff btw CT price and MKV at time of performance

see dicta in Reliance Cooper, 173 (holding that party opposiing seller's repudiation, if doesnt sue immediately, would have to buy the goods in event that seller revokes repudiation)

see Peevyhouse v Garland, 175 (holding that the actual damage from unmoved dirt resulted in a small diminution in value, and that was to be the calculation for damage instead of the high cost of performance)

see American Standard V Harold, 176 (holding that breaching party did not act in good faith when it failed to grade structures to level it should have)

see also dissent in Peevyhouse, and frequent criticisims of majority ruling (stating that breaching party did not act in good faith when it failed to move the dirt, and thus CT damage should have been awarded)

see Peevyhouse v Garland, 175 (holding that injured party's actual damage from unmoved dirt was nominal, $300, but cost of performance of breaching party was very high. $29k. thus injured party receive 'no more than diminuiton in value' from lack of performance - i.e. $300)

see Jacob v Kent, (holding that breaching party's omission of using reading pipe was a mistake in good faith, and thus actual damage was more appropriate than ct price)

see Peevyhouse, 175 (stating that the unmoved dirt was incidental to CT, so not appropariate to give CT damage)

see also American Standard, 176 (holding that the breach of grading was not incidental to CT, so CT damages were approrpriate)

see American Standard, 176 (holding that price of performance of grading work was foreseeable, so actual damage calculation not appropriate)

diff btw goods promised and goods received; UCC 2-714

see 2nd 351, stating that damages can not be more than what breaching party could have expected

see 2nd 351, stating that damages can not be more than what breaching party could have expected

see Hadley v Baxendale, 181 (holding that breaching party did know the extent of consequential damage to injured party of not delivering crank shaft expeditiously, so consequential damages were not appropriate)

see Hydraform Products, 182 (stating that consequential damages of future lost sales of wood stoves, and receiving less than expected price on sale of bizz could not be reasonably calculated, and therefore consequntial damages were not appropriate for those losses)

see Hydraform products, 182 (stating that lost profit from sale of 400 wood stoves was foreseeable, so included in consequential damages)

see Hydraform Products, 182 (stating that consequential damage of selling bizz for a low price was not a foreseeable consequence of the CT breach, and so that consequental damage was not appropraite)

see Sullivan, 183 (stating that injured party's failed nose job did not result in loss of employment, so no consequental damages awarded for that)

see Sullivan, 183 (ruling that P/S from extra 3rd operation in nose job was foreseeable, so consequential damage from that is apprpriate)

see also, Acquista v NY Life Insurance, 184 (holding that P/S was foreseeable from insurance company's bad faith acts of denying coverage and requiring tons of informational documents from P, so P gets consequential damage of P/S)

see Southwest Engineering, 186 (ruling that the LD in the Ct were not disproportionate to the substantial projects contemplated by CT, and thus LD were enforcable)

see southwest enginering, 186 (holding that party seeking LD did not have to be actually injured to receive $ damages)

see Southwest Engineering, 186 (stating party opposing LD failed to show that the intent of the parties was anything other than what was in express langaguge of the CT, and the parties took a calculated risk that LD clause was worth it)

see Cellphone Termination Fee Cases, 188 (holding that Sprint failed to show it did any analysis to determine a reasonable LD clause, and thus LD clause was invalid)

See Cellphone Termination Fee Cases, 187 (holding that Sprint's cost of individuals terminating their CT would be very difficult to calculate on an individual basis, so LD did not fail on this count)

see Cellphone Termination Fee Cases, 188 (holding that Sprint's intent for LD was to stop breach and procure profit from individuals who breached CT, and thus LD was not valid)

See Lefkowitz, 30 (lapin coat for reasonable cost); contra Pepsico, 32 (jet for much less than it is worth)

see Pepsico, 32 (holding that an ad needs words of limitation to make the offer good. e.g. 'first come, first serve'. Pepsico not offer b/c no definiteness)

nuances, 'subject to' may have been used carelessly; option and acceptance usually bind, only question is if open terms are too important; Empro MFG; 66

see Blinn, 60 (holding that "work for at least five more years" is not defiinte enough to establish agreement, and there is no other evidence to point to suggest there was agreement)

See Varney, 59 (holding that D's promise of 'fair share of profits' could not be determined from any tools of interpretation (specifically usage of trade) to determine party's intent, so CT fails)

nuance - if option was accepted, but not yet performed (or worked) on, offeror can still revoke. 39 (see Marchiondo - if broker had not found buyer, but put in work, the option may still be enforcable)

See Humboldt Oil, 37 (holding that if a party buys an option to buy land/goods/etc, that option is enforcable and irrevocable once accepted by consideration that bought the option CT. It can not be repudiated by counteroffer)

see also 2nd 25: Option is like a ct, but limits promisor's ability to revoke offer; e.g. in consideration of $1, I promise not to revoke my offer to sell X for 30 days

offeror can not revoke CT if performance has started, see Marchiondo, 39 (holding that once a party starts performance, offeror can not revoke Option CT)

see Drennan v Paving, 41 (ruling that Subcontractor can not pull out of CT w/ contractor, because Contractor is relying on the Subcontractor's performance)

for ads offering contract w/ performance being acceptance, notification is never necessary b/c against common sense

see Ever-Tite, 33 (holding that once part peformance has begun, acceptance is established, and CT enforcable, thus when P began moving materials for the construction work, the CT was in force)

B/C promisee's notificaiton to promisor is not required (See 2nd 54), if offeror wants to cancel CT, he must give notice to offeree

'commencing preparations' may not constitute 'commencing preparations', see note after Ever-Tite (holding that commencing preparations may not establish acceptance when CT under 2nd 62, but may give promissee the ability to sue under reliance)

silence can not consitute acceptance of a counter offer, even if past practice shows it. Must apply 2207. see Textile Unlimited; 52. (buyer sends order form, seller sends back invoice stating silence is acceptance and adds materially different terms - the invoice is not enforcable)

default rule is that silence will not be acceptance. overridden based on past practice of particular parties; 35

See DTE Energy, 49 (holding that language like "the terms in this acceptance supercede original offer" does not consittue an requirement of express assent, thus original CT was accpted even though P sent follow up with added terms)

apply subsection 3, and let UCC add gaps: see Textile; 52 (holding that subsequent invoice to a CT had an arbritration clause and required express assent, which was not given. Thus court applied UCC2-207 (3) and dropped the arbratirion clause, and allow UCC to fill in gaps with default rules, which does not include an arbitration clause)

silence as assent is not sufficient; Textile 52 (holding that D's subsequent invoice to a CT which included an arbitration clause, and stated silence would act as acceptance was rejected by the Court, stating assent to added terms must be clear and unequivical. but bc D required assent, and it was not received, the court applied UCC207(3) and dropped arb clause)

it acts as a counter offer; see klocek 55 (dicta stating that if added terms require assent, which Gateway did not do, then the added terms are a counteroffer)

then they are just proposals, but CT is accepted. See Klocek; 55 (holding that subsequent written CT with added terms to a prior oral agreement that did not require express assent, would be deemed an acceptance of the Offeror's (customer) original CT)

falsehood 'not in accord with the facts'; 2nd 159

misrep does not have to be towards a material fact if: a) there is fidicuary duty; b) artifice/trick is employed by representor; c) where parties do not in general deal at 'arm's length'; d) where representee does not have equal opportunity to become apprised of the truth or falsity of the fact represented. Vokes 86

usually true that misrep must be to a material fact. different if parties are on unequal footing. see Vokes; 82 (ruling that parties on unequal footing about person's dance ability will constitute fraud if teacher gives misrepesentaitve opinions to student)

material matter definition: "one in which a reasonable person would attach importance in determining his choice of action in the transaction in question"; Warren G, 91 (holding that a house with termite damage, that buyer was unaware of is a material matter, which he should have been notified of, but wasn't so defense of misrep is available)

if parties are on equal footing, court will not step in, but will step in if parties are unequal footing - see Audrey Vokes; 86 (ruling that fraudlent statements by dance instructor to bad dancer qualifies as fraud)

see Vokes, 82 (ruling that dance instructor's statements induced P to buy lessons that she did not need, and were not helping her)

see Warren G, 91 (holding that P was reasonable for assuming there was not termite damage when house seller did not disclose it)

see Ora Lee, 99 (holding that CT was not clear a/o of its fine print, and signing customer would have no idea that the CT had the effect of "keeping balance due on all items until the time balance was completely eliminated")

b) if ct can be rendered enforcable, do so by removing langague (can not add langauge) (con is too mechanical);

see Delictatessen, 62 - agreement may have language saying parties will agree based on a methodology - market price, recourse to objective/extrinisc test

Delicatessen - sale of goods often leaves price open b/c price fluid, but sale of land, stability is paramount, so open term there may kill ct)

see MGM (ct to star in TV show may be valid ct based on these factors); 61; see also J Martin Delicatessen; 62 (future lease will be 'mutually agreed upon', but no past practice of filling lease w/ this person, so CT die)

"a promise which meets the requirements for the formation of a contract and limits the promisor's power to revoke an offer." 2nd 25

An option contract is a type of contract that protects an offeree from an offeror's ability to revoke their offer to engage in a contract

which is accepted by promissory acceptance, and can be revoked if no promissory acceptance, option CT can be accepted before promissory acceptance

Alternate modes of acceptance for goods, UCC 2-201(b)(3); 35 - "bargain of parties in fact as found in their langauge, or by implication from other circumstances including course of dealing or usage of trade or course of performance"

determination of type of remedy can be determined by rules of interpretation, see New Era Homes, 169 (holding that trade usage helps to establish that the parties mean to have remedy be actual loss)