Submitted by: Submitted by timone63
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Category: Other Topics
Date Submitted: 01/17/2011 10:55 PM
CONTRACTS
• When approaching a contracts question, first ask what is the applicable law?
o If for sale of goods, look at UCC
o Otherwise look at the common law (case law, then R2k)
• Afterward, look at formation of the contract
o Offer
o Acceptance
o Consideration
o Intent to be bound
o Promise
• Then look at the terms of the contract
• Then look at performance
• Then look to see if performance excused in any way
Promise
I. The Restatement (2nd) on Promise, Agreement and Contract Defined
• §1 - A contract is a promise for the breach of which the law gives a remedy, or the performance law recognizes as a duty.
• §2 – A promise is manifestation of intent to act or forbear, made so promisee understands a commitment has been made.
• §3 – An agreement is a manifestation of mutual assent. A bargain is an agreement to exchange promises or performance.
• § 4 - A promise may be oral or written, or may be inferred from conduct.
• §5 – (1) a term is part that relates to a specific matter
II. UCC - Definitions
a. §1-201 (3) - "Agreement" –the bargain of the parties as found in their language or by other implications from custom or conduct.
b. §1-201(11)"Contract" means the total legal obligation of the parties.
c. §2-103 – (1) Buyer - person who buys or contracts to buy goods, (2) Good faith in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade, (a)"Receipt" of goods means taking physical possession of them. (b)"Seller" means a person who sells or contracts to sell goods.
d. §2-106(1) – "contract" and "agreement" limited to the present or future sale of goods. "Contract for sale" includes both a present sale of goods and a contract to sell goods at a future time. A "sale" consists in the passing of title from the seller to the buyer for a price. A "present sale" means a sale which is accomplished by the making of the contract.
e. §2-102 – UCC article 2 applies to...