promise to ship the goods

or

ship the goods

if they are non-conforming: acceptance and breach

UNLESS

accommodation- then counteroffer (so no K formed)

Merchant- person making the offer

writing

signed by the merchant

words of firmness

-for the time stated or a reasonable time (if not stated)

maximum of three months (this is the maximum that it is irrevocable, so if the merchant said the offer was open for longer than three months and they don't revoke it between the three month and the time stated, you can still accept during that time)

when one party is a non-merchant: the term is just a proposal

when both parties are merchants: part of the K unless: objection, offer states no new terms, materially alteration

MY LEGS

- contracts made in consideration of marriage

- K not capable of being performed in a year

-Land, over one year

-executor promises to pay estate debt

-goods $500 and over

-suretyship (guarantee)

Exception: main purpose

SWAP

-specially manufactured goods

-written merchants confirmation w/o response in 10 days (both have to be merchants; quantity term must be included, signed by person asserting the defense (P))

-admission

-payment/performance

exclusionary effect of written contract on earlier or contemporaneous agreements as a possible source of terms of the contract

aka

extrinsic evidence is inadmissible

usage of trade

course of dealings

course of performance

NOTE: if clear manifestation in the K, then these cannot be brought in either

inconspicious risk shifter

K of adhesion (unequal bargaining power)

unreasonable covenant not to compete

gets the goods to a common carrier

makes reasonable arrangements for delivery and

notifies the buyer

C&F means cost and freight

CIF means cost, insurance and freight

ex: C&F $500

Risk of loss, absent breach by seller, non-carrier

seller-merchant?

Risk of loss, absent breach by seller, non-carrier

seller-nonmerchant?

depends on whether a destination or shipment K

if destination, seller has risk of loss until goods get to sellers place of business or residence

if shipment, sellers risk of loss ends when (1) gets goods to carrier (2) reasonable arrangments (3) notified buyer

risk remains on the seller unless:

acceptance (despite breach)

cured (w/in proper time or reasonable time if reason to beleive buyer would accept)

warranty of title

and

warranty against infringement (merchants only)

merchantability

fitness for particular purpose

merchants only

it is the fitness for ordinary purpose

1. buyer has particular purpose

2. seller has reason to know of the p/p

3. buyer relies on seller to get adequate goods for the p/p

the seller just has to say something like it's a fact

seller doesn't have to be committing fraud, they can innocently made an express warranty that turns out to be false

not the same as "puffing"

sample or model ("i'll sell you one like this"- express warranty)

all warranties could be disclaimed

if expressly disclaiming merchantability, had to use the word merchantability

you can impliedly disclaim the implied warranties by selling something "as is"  (merchantability and fitness for particular purpose)

-no disclaimer or implied warranties

-lemon problem- resolved in favor of consumer

-No ty-ins: only permitted if no cost for parts and labor

foreseeable, regular damages

no actual loss to P ($1)

yes as long as:

1) at the time of K, the amt of possible damages from any later breach of contract is difficult to determine, and

2) at time of K, the K provision is a reasonable forecast of possible damages

NOTE: you either have valid liquidated damages clause or invalid penalty clause (don't mix these)

cover

(difference between the price to cover and K price)

K damages

(difference between fair market value and K price)

specific performance

(only if money damages are inadequate)

REJECT:

single deliver:

unless curable w/in time period or reasonable time if seller believed buyer would accept

installment:

only allowed to reject if show substantial impairment to value of installment or the whole thing

ACCEPT:

knowingly:

difference between the goods as they are and the goods as they should have been

non-knowingly-revoke acceptance:

standard: substantial impairment

following the revocation, buyer can:

cover, get K damages or specific performance

this is not necessarily a breach, but seller can:

not deliver the goods

can stop the goods in transit

or

reclaim the goods w/in 10 days of delivery (buyer still has to have them though and if use this then this is only remedy)

sell to another

(difference between K price and resale price)

contract damages

(difference between the fair market value and the contract price

NO specific performance

lost profits only IF volume seller

right to demand assurances

anticipatory repudiation

incidential damages

consequential damages

mitigation

requires a writing (to get assurances)

if no response w/in 30 days it becomes an anticipatory repudiation

unequivocal

executory promises on both sides

can sue now

can sue when performance is due

can rescind the K

ACHIEVE

Accession- add value to property

Cash

Holder in Due Course

Intermingling

Entrustment

Voidable title

Estoppel

Owner entrusts goods with

Merchant, who sells to

buyer in ordinary course

*must be the owner, not a bailee, but can be the owners agent

*must be a merchant, not a casual seller

* buyer must be in ordinary court, not a creditor

*buyer will get title- harsh facts make no difference

intentional sale b/c of fraud

ex: seller sells to buyer because buyer said he was Brad Pitt.  If that person sells to a BFP then BFP has title and seller is out of luck

legal bar to claiming title

allows you to act to your detriment- you are estopped from getting it back (buyer gets title)