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Contract Law (Step 3: Interpretation - preference given to written or…

- - - - Warranties
        
        implied warranty of merchantability: included in every sale of goods, because the goods sold must be fit for their ordinary purpose
        
        implied warranty of fitness for a particular purpose: generally accompanied by strange fact patterns. There must be a DIRECT representation by the seller or a representative of the seller that the product fits what the buyer wants.
        
        express warranty: created by the seller. these become a party of the agreement if they are the basis of the bargin. Can be altered by explicit exclusionary or modifying language mentioning merchantability.
        
        If contract includes expression such "as is" or "with faults" then that language is sufficient to draw buyer's attention to exclusion of the warranties
        
        Course of dealing, course of performance, or usage of trade may also indicate a warranty is modified or excluded
        
        If in writing, it must be conspicuous
      - UCC provides for missing terms such as price, time, and place of delivery. Does not provide for QUANTITY
- - - - By offeree
      - rejection
      - By offeror: revocation
      - counter-offer: generally terminates the offer and creates a new offer
        
        Conditional acceptance terminates offer; if language does match up, there is no acceptance. Known as mirror-image rule. DOES NOT APPLY IN UCC
        
        Conditional acceptance under the UCC can constitute a legitimate contract. Occurs whena buyer places an order and the seller's acceptance is different or addresses terms not in the order. Called Battle of the Forms.
        
        If buyer is consumer: additional terms treated as proposals
        
        If both parties are merchants, additional terms become part of the contract unless
        
        offeror objects in a reasonable time
        
        additional terms would materially alter contract.
        
        in the event the terms are different, the knockout rule applies and omits both the offeror's original provision AND the offeree's differing provision from the resulting contract.
        
        offer expressly limits acceptance to its terms
  - - - Reliance that is reasonable, detrimental, and foreseeable
      - enforcement necessary to avoid injustice
      - Promise
  - - - Terms of the Deal must be definite and certain
      - the offer must be communicated to the offeree, giving them actual knowledge of the offer
  - - - If only one party is mistaken, the mistake does not prevent enforcement of the contract
      - If the non-mistaken party knew or had reason to know abou tthe mistake by the other party, the contract is voidable by the mistaken party.
    - - service contract not capable of being performed within a year from the time of the contract
      - Real estate contracts
      - promise in consideration of marriage
      - Sales of goods for $500 or more
      - Promise to pay the debts of another (suretyship)
      - Only the party claiming a contract exists must show a writing signed by the defendant where the material terms of the contract are included.
      - UCC requirement does not look at the material terms, but rather if the contract states it is a contract for the sale of goods and contains the quantity of goods.
    - - mental incompetency
      - intoxication
      - Minors
- - - - in existence if both performances can be performed simultaneously
      - present if one's performance will take longer than the other
      - read into the contract by a court
      - Failure to fulfill a condition does not necessarily have to be breach, but it may relieve other party of performance
  - - - Buyers cannot reject after already accepting by inspecting and indicating goods do conform or by failure to inspect
      - Acceptance may be revoked if the goods are so defective that their value is substantially impaired.
      - If goods or their delivery fail to conform in any way with the contract, buyer may reject, accept, or selectively accept the goods.
      - pre-existing duty is abolished under UCC and is instead substituted by the good faith test
- - - - those that are for future rights to arise under a future contract
      - illegal things
      - those that substantially change the contract's risks/duties
  - - - Novation: occurs when the obligee agrees to release the delegator in return for the liability of the delegatee
    - - Contracts that prohibit delegation
      - Personal perforamnce contracts where the recipient relies on the qualities of the party who is to render the performance
  - - - Incidental beneficiary: one who benefits from a promisor's performance, but was not intended to be the one who benefits
      - Intended beneficiary: One who was intended to benefit from promisor's performance. May enforce the contract against a breaching promisor but have no rights against a breaching promisee in the event that performance doesn't happen
- - - - Laches: When considering an equitable remedy, courts will consider whether the aggrieved party has clean hands or whether the party waited too long to seek recovery.
      - not usually available for
        
        personal services contracts
        
        contracts requiring ongoing cooperation between parties
      - available for
        
        real property
        
        Unique objects
- - - - Common law governs
        
        real estate contracts
        
        service contracts
    - - UCC Art. 2 governs
        
        Describe transaction in goods: it is the sale of tangible, personal property?
        
        apply facts
        
        conclude UCC applies
        
        Step 2: Is one of the parties a merchant (one who regularly deals in goods of the kind sold or who otherwise by his profession holds himself out as having special knowledge or skills as to the practices or goods involved.
        
        If the contract is a mixture of services and sale of goods, determine which part is the most predominant part of the contract and apply it.
        
        If sale of goods predominate: Apply UCC
        
        If services predominant: Apply common law