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Contracts, (Merchant = one who regularly deals in goods of the kind sold…

- - - - UCC: warranties
        
        express
        
        created by seller; become part of agreement if basis of bargain
        
        implied merchantibiliy
        
        goods fit for ordinary use
        
        can alter by express exclusion/modifying language mention merchantibility; must be conspicuous
        
        as is or with all faults language is enough
        
        course of dealing, performance, or usage of trade may also indicate warranty exclusion/modification
        
        implied fitness
        
        direct representation by the seller/seller's rep that the product fits what the buyer wants
      - UCC: provides missing terms of price, time, place of delivery
      - Common law: provides missing terms of price and duration
      - obligation of good faith and fair dealing
    - - purpose for which each evidence is being introduced?
        
        if purpose is to interpret/explain terms of written contract, parol evidence admissible unless completely integrated
      - does the evidence relate to a term or contract that is integrated?
        
        integration: whether parties intended written contract to be final discussion on specific terms
        
        merger clause? = states words to the effect that the writing is a complete and entire agreement of the parties
        
        look at how detailed
      - UCC: will use usage of trade, course of dealing, and course of performance to supplement terms of written contract
      - does not bar evidence to prove written agreement invalid/unenforceable
  - - - express
      - implied
      - constructive
        
        read into the contrct by a court
        
        or if both performances can be performed simultaneously, each is a constructive condition precedent to each other
        
        if one performance will take longer it is constructive condition precedent to the other
        
        failure to fulfill condition does not necessarily constitute breach of contract, but may relieve other party from performance
      - and precedent, concurrent or subsequent
  - - - whether they have standing to sue promisor. incidental (those who benefit from promisor's performance) but were not intended benefit: no standing) v. INtended: intended to benefit - may enforce contract against breaching promisor
    - - transfer of right to receive performance under contract: owner must manifest intention to make present transfer of right
      - partial assignment valid
      - certain rights not assignable: those that substantially change contracts risks/duties, those that are for future rights to arise under future contracts, and thsoe that are illegal
    - - third party agrees to satisfy a performance obligation owed by one party to contract
      - does not relieve delegator from his obligations under the contract and the delegator remains liable for its performance unless there has been novation
      - certain duties not delegable: personal performance contracts when recipient relies on qualities of the party who is to render the performance; or if contract prohibits delegation
  - - - terms definite and certain
      - offer communicated to offeree
      - offeree has actual knowledge of offer
    - - Common Law: mirror image rule: acceptance must be to all parts without change or it becomes counter offer
      - UCC Battle of the forms: change of terms = acceptance (unless stated otherwise in one of the forms. if buyer CONSUMER: additional terms are proposals; if both are MERCHANTS: additional terms become part of contract unless (1) offer expressly limits acceptance; (2) offeror objects within reasonable time; (3) additional terms would materially alter the contract
        
        knockout rule applies: omits offeror's original provision and the offerree's differing provision from the resulting contract
      - offer controls the method of acceptance
        
        if silent as to methods: can accept by performance - unilateral: must complete work for acceptance
        
        bilateral, must be agreement before performance
      - mailbox rule: acceptance by letter is valid upon dispatch; if offeree changes his mind and sends a later acceptance - whichever is received first controls
    - - promise must induce detriment; detriment must induce promise
        
        must have legal value
      - act of forbearance by promisee is sufficient if it gives the promisor a benefit
      - common law: pre-existing contractual/statutory duty cannot act as consideration for a new promise
      - UCC: new consideration not required to modify a sale of goods contract; good faith is test
      - substitute: promissory estoppel/ detrimental reliance
        
        promise
        
        reasonable reliance, detrimental, foreseeable
        
        enforcement necessary to avoid injustice
    - - termination
        
        revocation by offeror
        
        Rejection by offeree
        
        counteroffer by offeree: terminates and makes new offer
      - lack of capacity
        
        under18
        
        mental incompetence; lack ability to understand agreement
        
        intoxicated person known to other party
      - statute of frauds
        
        promise to pay debts of another (suretyship)
        
        promise in consideration of marriage
        
        service contract not capable of being performed within a year from time of contract
        
        real estate contracts
        
        sale of goods $500 or more
        
        these contracts must be signed by parties to be bound
        
        UCC: does nto look to material terms, instead taht writing states it is a contract for the sale of goods and contains quantity of goods
      - illegality
      - misrepresentation
      - nondisclosure
      - duress
      - unconscionability
      - mistake of fact
        
        mutual
        
        both parties mistaken about material fact, VOIDABLE by adversely affected party
        
        unilateral
        
        does not prevent enforcement UNLESS non-mistaken party knew/had reason to know about mistake by other party, contract voidable by mistaken party
  - - - common law: range from expectation damages, reliance damages, restitution, liquidated damages
      - UCC: seller's remedies depend on whether goods have been delivered; can be damages or specific performance; key factor: whether buyer has covered its loss by purchasing replacement goods
    - - specific performance
        
        available only when monetary award would be inadequate to grant relief to aggrieved party; unique objects and real property
      - restitution
      - negative injunctive relief
      - court will consider whether aggrieved party has clean hands or whether party has waited too long to seek recovery: LACHES