CL UCC Comparison Chart

Common Law & UCC Differences

Applies to? Acceptance

Bilateral K Unilateral K

Different or Additional Terms What Must a Written K Have to be Enforceable?

Pre-Existing Duty Rule Modifying Terms of K

Determining Degree of K Integration

COMMON LAW Applies to services and everywhere UCC does not Offer invites A in any manner and any medium reasonable under circumstances 2RK 30

Notification of A required and effective upon notification 2RK 56 Acceptance by performance when act is seen by Ofe BUT notification needed if knowledge of it will not come quickly to promisor 2RK 54 Follow Mirror Image Rule Writing shows a K was made 2RK 131 - Essential terms - Signature by party that the K is being enforced against - Does not have to be all in one document—may be pieced together - Parties to the K - Nature of agreement

To modify a K you have to meet the preexisting duty rule or obviate it—if under CL - Both parties have to give consideration (something that the other wants—new consideration) o This is to limit duress A duty already owed cannot be consideration for a new contract. (2RK 73) Why can’t 2RK 90 apply? Party cannot lay the foundation of estoppel based on his own wrong Gianni (most restrictive) Masterson (1RK) 2RK 216 See page 38

UCC Applies to sale of goods Same Offer to buy good for prompt/current shipment invites A by (1) prompt promise to ship or (2) prompt or current shipment of nonconforming goods. UCC 2-206

A by performance always require notification 2-206 Battle of Forms Writing shows a K was made UCC 2-201(1) writing (1-201(43))—printing, typewriting, or any other international reduction to tangible form - must contain quantity of goods - does not have to have all terms and ok if a term incorrectly stated - signed by person against whom enf is sought (stamp, letterhead, mark, etc) –UCC 1-201(37)—only enforceable if signed by party of whom enf is sought against - evidences K for sale has been made by parties o one way UCC stricter than CL o all in one document Under UCC—no new consideration is needed to modify terms of a K but must apply the test of good faith §2-209 PEDR does not apply to a sale of goods!!

UCC 2-202 (least restrictive) - Would the term certainly have been included in the contract? - If not, allowed in. (cmt 3, pg. 373) CD, UT, CP can always supplement an integrated K

Evidence of mutual mistake Not precluded by PER No Oral Modification Rule

Common law: Must have thought it was in the writing.

UCC (comment to 2-202): “complete & exclusive mistake”

Under common law you can always modify a K orally—even if the K says you can’t - Must have consideration though (see PEDR) - Traditionally not effective. Even in jurisdictions that honor them, one can often escape by showing reliance on the oral modification.

Plain Meaning Rule

Thing of common law but applies to UCC too See pg 41

UCC says you cannot modify written Ks orally UCC 2-209(2) if the agmt expressly said that you can’t (signed written agmt) - A signed agmt which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as b/w merchants such a requirement on a form supplied by the merchant must be separately signed by the other party. - (However, can still be a waiver under 209(4). Reliance on such a waiver can make it non-retractable under 209(5).) Follows CL UCC Does not take a side on this issue—Use CL in determining ambiguity—must apply Cali/NY or whatever jurisdiction you are in

Express Warranties Evaluating Performance on the K

Exist in CL and UCC Substantial Performance (use material breach test) The doctrine will be applied if the breach was non-material (meaning the performance was substantial). The effect is that the nonbreaching party still has to perform their half of the deal, but can sue for non-material expectation damages. If the breach is material then the injured party does not have to perform and can sue for expectation damages.

Contracts with Independent Parts to Equal Complete Performance Implied Conditions

Divisible Ks Applies to services only (equivalent of UCC installment K) Several, Not several Performance comes before payment

Perfect Tender Rule Buyer can reject goods unless a seller makes a “perfect tender.” This covers not only the quantity and quality of the goods, but also the details of the shipment. This rule is the default rule but can be changed through parties agmt in the K

Installment K—this follows

UCC: Mutual Conditions Implied: Buyer’s tender of payment is a condition for delivery (2-511(1)) and seller’s tender of the goods is a condition for payment (2507(1)). - Tender = offering and being able and ready to perform if the other side does what they are supposed to do - These are CONCURRENT conditions—both duties are due at the same time, no one goes first under UCC

Irrevocable Offers

Option Ks Require consideration to be enforceable otherwise revocable at any time regardless of whether it was promised to remain open for a certain period of time Dickinson v. Dodds

UCC 2-205 Firm offers enable an offeree to enforcement an offer by a merchant which by its terms state that it will be held open even though the promise to hold it open was not supported by consideration

CHART ARGUMENTS MERCHANTS MAKING FIRM OFFERS PROS & CONS PG……………………. 16 BILATERAL VS. UNILATERAL CONTRACT ..........…………………………………. 20 NON-COMPETE AGMTS & NO CONSIDERATION PROS & CONS………….26 GRATUITOUS PROMISES PROS AND CONS ………………………………………..26 Difference b/w the AP case and the Watkins Case …………………………….36 Differences b/w Swinton and Kannavos Cases …………………………………..37 PROS & CONS STANDARD FORM CONTRACTS ……………………………………49 CONFLICTING VIEWS OF UNCONSCIONABILITY ………………………………….52 PAYDAY LENDING ARGUMENTS …………………………………………………………54 SPECIFIC PERFORMANCE VS. DAMAGES …………………………………………….71 LIQUIDATED DAMAGES PROS & CONS ……………………………………………….80

Pros and Cons Perfect Tender Rule—buyer can use pretext, book pg 731 Pros -

Buyers should not be required to guess at his peril whether a breach is material Proof of materiality would sometimes require disclosure of the buyer’s private affairs such as secret formulas or processes

-

Buyer can use any pretext if they do not want the good

Con