1-103 CL controls unless expressly contradicted by UCC provision 1-106 General stuff about Remedies 1.

1-106(1)--Remedies to be liberally administered 2. 1-106(1)--Measure using party's expectation interest a. Don't overcompensate parties (Luten bridge) 1-107 Waiver of claim after breach 1. Deals w/Foakes situation 2. Must be in writing and rt. arising out of br/k 1-201(19) Def. of good faith: Honest in fact (non-merchant) 1-204(2) Reasonable time definition 1. Depends on nature, purpose, and circumstances 1-207 Accepting accord and satisfaction 1. Says person can accept part performance w/o giving up rts. to rest of disputed claim 2. Doesn't supercede CL (see 1-103) 2-102 Scope of the sales article 1. Applies to transactions in goods 2-103(b) Def. of good faith for a merchant 1. Honest in fact AND observance of comm. standards of fair dealing in trade 2-104 Def. of Merchant 1. Deals in goods of the kind involved in transaction 2-105 Definition of Goods 1. Includes goods under 2-107: severed from realty by the seller

2-201 Statute of Frauds 1. 2-201(1)--K for $500 or more must be in writing 2. 2-201(1)--K doesn't have to be completely in writing but must have quantity of goods Comment 1: very liberal, lead pencil on scratch pad enough. 3 reqs: a. Evidences k for sale of goods b. Is signed by other party c. Specifies a quantity 3. 2-201(3)--K if not in writing still enforceable if: a. Seller started on specially manufactured goods for buyer b. Breaching party admits in pleading to k c. Payment has been made or goods have been received (k has been completed) 2-202 Parol Evidence Rule 1

1. 3 requirements (must show one doesn't exist to get past PER) a. Contradict terms of k b. 2-202(b)--completely intergrated c. 2-202 comm. 3--wouldn't be collateral agreement 1) Standard is certainly would include 2. May use all CL exceptions to PER by 1-103 a. 2-202(a)--interpret ambiguous term by COP, COD or UT 1) Comm. 1 suggests liberal standard for ambiguous 2-204 Indefiniteness 1. 2-204(3)--won't fail for indefiniteness if a. Parties intended to be bound b. Reasonably certain basis for giving an appropriate remedy 2. Gapfillers a. 2-305 open price term 1) 2-305(1)--reas. price at time of delivery b. 2-308 open place of delivery term c. 2-309 open time for delivery term [2-309(1)-reas. time] d. 2-310 open time for payment term e. 2-311(2) open assortment term picked by buyer f. 2-314 assume implied warranties exist

2-205 Firm offers (options) 1. Requirements a. Offer signed by offeror b. Must promise to keep offer open for a period of time (limit is 3 months but liable up to it) c. Only applies to merchants 2. Applies to keep offer open or have k but may cancel (Gurfein) 2-206 How to accept an offer, and nonconforming tender 1. 2-206(1)(a)--offer can be accepted by perf. or promise unless says otherwise a. 2-206(2)--if accept by action offee must notify offor in a reas. time or offor can treat offer as having lapsed 2. 2-206(1)(b)--if S sends nonconforming tender but doesn't tell B of this, then S has simultaneously accepted B's original offer and breached it a. S can call tender "accommodation to k" and this is classified as a counter offer that B may accept or reject 2-207 Written acceptance doesn't match terms of offer 1. 2-207(1) is different acceptance expressly conditional a. Yes: 2-207(3) no k unless k from conduct of parties 1) If is k now, then a) Take all terms agreed on b) Use presumptive gap fillers for rest (2-204) b. No: 2-207(2) have k w/additional terms, but they fall if 1) k is not between merchants 2) 2-207(a)--original offer limited to its terms 3) 2-207(b)-- added term is material 4) 2-207(c)--offor objects to new term 2

2. This doesn't apply if acceptance is tender that is accomm. to k b/c 2-207 presupposes accept. and this is just a cntr-offer (2-206) 2-208 Interpreting intent of contract 1. 2-208(2) a. Express provisions b. COP c. COD [controls usage of trade 1-205(4)] 1) Single occassion doesn't make COD (Comm. 4) d. Usage of trade

2-209 Modifications and Waiver (Linz) 1. 2-209(1)--don't need con. (rev. CL rule) but must be consented to a. Modification must be in GF (comm. 2) b. Foreseeable change in cost good enough reason (comm. 2) 2. 2-209(2)--oral mod. won't modify written "no oral mod" clause a. 2-209(5)--can waive if det. rel. 3. 2-209(3)--must meet SOF a. 2-209(5)--can waive if det. rel. 4. Remember waiver of 1-107 requires br/k 2-302 Unconscionable contract or clause 1. Measure at time k was made 2. Test for procedural and substantive a. Procedural 1) k of adhesion 2) Unfair surprise b. Adhesion 1) Ask what would people bargain for if no procedural unconsc. (best cost avoider--A & M Produce) 2) High price unconsc. (Kugler) 3. Comment 1: Principle is one of the prevention and unfair surprise. 4. Use as supplemental test to 2-316 and 2-719 which should use 1st 2-306 Outputs, Requirements and Exclusive Dealings contracts 1. 2-306(1)--requirements and outputs a. Don't fail for lack of mutuality b. Indefiteness won't void b/c fill in quantity w/historical demand or supply TWO REQUIREMENTS: c. Imposes duty of GF on B and S (use for actual reqs.) 1) Jobber has no actual reqs. d. Order can't be unreasonabley disproportionate if is 1) Might void whole k (Loudenback) 2) Just void over reasonable order 2. 2-306(2)--exclusive dealings a. Has duty of best efforts as measured by industry standards (Bloor) b. GF measured same way by comm. standards (Paramount)

of oppression

2-313 Express warranties 1. 2-313(1) how created: 3

a. 2-313(a)-- affirmation of fact or promise by words that forms basis of bargain b. 2-313(b) comm. 5--description don't need to be by words c. 2-313(c)--sample or model creates EW 2. 2-313(2) affirmation of fact v. puffery a. Puffing statement of value or opinion b. EW affirmation of fact or promise 2-314 Implied warranty of merchantability 1. 2-314(1)--only implied if merchant 2. 2-314(2)--standard of IWM a. 2-314(2)(c)--fit for ordinary purposes intended 1) Determine if fit look to trade custom 2) Determine who's purpose counts by trade custom 2-315 Implied warranty of fitness for particular purpose 1. Two reqs. a. S has reason to know of B's particular purpose for good b. B relying on S's skill or judgement 2-316 Disclaimer of warranties 1. 2-316(1)--can only disclaim EW by PER (2-202) a. If can't disclaim, interpret EW consistent w/disclaimer b. If can't, invalidate disclaimer c. In some states 2-316 trumps 2-202 or interpret 2-202 very liberally (Owens) 2. 2-316(2)--can only disclaim IWM if use word merchantability a. 2-316(3)(a)--exception disclaim IWM if use words "as is" b. 2-316(3)(c)-- can disclaim IW by COD, COP or trade usage 3. 2-316(2)--to disclaim, disclaimer must be conspicuous a. 1-201(10)--consp. defined as RM ought to notice it 2-326 Sale on approval 1. Comment 1 says have mutuality

2-328 Auctions 1. 2-328(2)--bids are offers 2. 2-328(4)--S may salt crowd a. If B finds out can 1) Pay last GF bid 2) Void the sale 3. comm.2--normal procedure is "with reserve" 2-508 Seller's right to Cure 1. 2-508(1)--Seller may cure if delivery made befor k date 2. 2-508(2)--Seller may cure if delivery on k date if a. Didn't know of defect (thought good acceptance) b. Knew of defect but thought could fix c. Knew of defect and thought could pay buyer for it (Provision requires reasonable grounds to think was acceptable) Comment 2: Reasonable grounds includes particular circs. 3. Cure must be done in reasonable time [Reasonable time can be cut 4

back drastically if buyer needs item quickly (Ramirez)] Comment 3: Determine reasonable time by attendant circs. 4. Comment 2: "No replacement" clause in a K, won't allow cure under 2-508(2) unless on form k and then must see if out of line w/trade usage 2-601 Buyer's Perfect Tender Rule 1. Goods don't conform in any way may reject whole (Determine if rejection correct under 2-602) 2. If accepts non-conforming tender, still can use 2-714 2-602 Buyer's Rejection of Goods must be Reasonable 1. 2-602(1)--Only effective if seasonably notifies seller and rejects in reasonable time after delivery or tender 2. Seller has access to right to cure (2-508) 3. 2-602(2)(b)--Buyer has goods in po., under DUTY to hold them w/reasonable care for a time sufficient for seller to remove them. 4. 2-602(2)(b)--Rightful rejection go to 2-711 5. 2-602(3)---Wrongful rejection, seller goes to 2-703 2-603 Buyer's duties to sell goods 2-605 Buyer must state particular defect

2-608 Buyer's Revocation of Acceptance 1. 2-608(1)(a)--Accepted good w/substantial defect w/assurance defect would be fixed in seasonable time Comment 2: Substantial defect is def. as whether the nonconformity is such to cause a substantial impairment of value to the buyer 2. 2-608(1)(b)--Accepted good w/substantial defect but didn't know it existed and wouldn't have discovered w/reasonable inspection OR seller's assurances Comment 3: Seller's assurances can come from circs., k, or explicit language used at time of delivery 3. 2-608(2)--Buyer must revoke in reasonable time and no substant. change in goods not caused by own defects a. If difficult to tell extent of damage due to substantial defect and damage from change of goods use 2-714 4. 2-608(2)--Seller has rt. to cure Comment 5: Notice predicated on allowing seller reasonable adjustment Some cts. (TX) DON'T allow cure by seller 5. 2-608(3)--Buyer has same rts. and duties as if rejected goods 2-610 Anticipatory Repudiation (Seller/Buyer) 1. 2-610(a)--Other party may wait for commercially reasonable time after which or instead of or duting go to-a. Commercially reasonable time measured as: 1) How definite repudiation is 2) How easy to cover somewhere else 3) Industry custom to cover 2. 2-610(b)--Resort to 2-703(seller) or 2-711(buyer) 3. Comment 4: Don't necessarily have to notify repudiating unless taking affirmative action requiring notice (2-706 private or public resale)

(2-711)

party 1st,

2-612 "Installment K" Breach 1. 2-612(1): Def. : requires delivery of goods in separate lots 2. 2-612(3): Default of one or more installments substantially impairs value of whole, there is br/of the whole

2-613 Goods lost who bears the risk 1. 2-613(a)--total loss then S can void the k 2. 2-613(b)--partial loss then choice by B to void the k or take the part that is left 3. Only applies if a. Risk of loss hasn't passed to B b. Not fault of either party c. CC occurred at start of k (mist.) or subs. to k (impos., FOP) 2-614 Method of delivering goods (means of perf.) is impracticable 1. 2-614(1)--2 reqs. a. Manner of delivery comm. impracticable b. No comm. reas. sub. for delivering goods 1) Person who bears risk will bear extra cost if there exists comm. reas. sub. that is more expensive 2-615 General Changed Circumstances 1. 2-615(1) S excused if perf. is comm. impracticable due to failure of basic assumption of k a. Comm. 1--risk must be unforeseeable (not dispositive) b. Comm. 5--if U bear the risk, then not excused c. Comm. 5--if S exclusive supply is destroyed this applies 2. Section doesn't apply to B b/c he can always pay money 3. What qualifies as failure of basic assumption (Comm.4) a. Price fluctuation and market collapse doesn't b. Shortage of supplies due to war, embargo, crop failure, or unforeseen shutdown of major sources of supply does 2-702 Seller finds out buyer is insolvent 1. 2-702(3): Reclamation of goods excludes all other remedies 2. Comment 3: Reason for 2-702(3) is that seller is given preferential treatment 2-703 General Seller's remedies 1. Comment 1 says that seller doesn't have to elect remedies, cumulative 2. 2-703(a)--Seller can keep goods not yet delivered 3. 2-703(c)--Seller can go to 2-704 to identify goods to k 4. 2-703(d)--Seller can resell and recover damages from 2-706 5. 2-703(e)--Recover for non-acceptance (2-708) or price (2-709) 6. 2-703(f)--Seller can cancel k (This means can recover damages 2-703(d-e) and recover in restitution) 7. Comm. 4: remedies liberally applied w/limit from 1-106 2-704 Seller identifies goods and can complete goods 1. 2-704(1)(a)--Seller can identify goods after the k has been br. including unfinished goods [2-704(1)(b)] 2. 2-704(2)--Allows seller to complete (even if haven't started) 6 remedies are

under

a. Complete if reasonable using commercial judgement 1) Measured at time seller learns of br. 2) Burden on buyer to show unreasonable (comment 2) b. Seller not required to complete to mitigate damages (Luten) can just sell for scrap value [recover under 2-708(2)] 2-706 Seller's remedy to resale goods 1. 2-706(1): Seller must act in good faith and in comm. reasonable manner 2. (k price-resell price)+ID-ES (ID in 2-710) 3. If at private sale, must notify buyer [2-706(3)] Comment 4: Private sale is solicitation and negotiation and Public sale is an auction 4. Public sale, terms must be commercially reasonable a. If not, still get profit [2-708(1)] but not loss on sale (profit-true market value) b. Conversely, Snyder case suggests can recover under 2-708(2) and get diff in k and improper resale 5. 2-706(4)(b): Seller must notify buyer of time and place of public sale (see comment 8) 6. Seller can buy goods himself [2-706(4)(d)] 7. Not accountable to buyer for any profit [2-706(6)] 8. Use 2-706 because want money in pocket, otherwise if think prices going up use 2-708 2-708(1) Seller's damages for k-MV on Finished goods 1. (k price-market price at time of tender)+ID-ES 2. Market price harder to prove than resale price (2-706) 3. Here, stuck w/goods 4. Not entitled to provision if puts one in better position then if k was performed (Nobs Chemical)--Jobbers who have locked in higher MV is at date of tender

price then what MV price

2-708(2) Seller's damages if jobber, incomplete, lost volume Profit+ID+reasonable costs incurred-salvage (resale) value 1. For lost profit from lost volume P must show (Snyder) a. Resold item after br., but would have anyway w/or w/o br. and would have had both profits w/o br. b. Evidence shows seller had unlimited supply and not filling same demand (Resale buyer would have been solicited by P if no br/k, solicitation would have been successful, and P could perform the extra work)--Massengale 2. Jobber a. Seller never acquired goods b. Decision not to acquire was commercially reasonable 3. Incomplete goods a. Profit+ID+reasonable costs-salvage value 4. Comment 4: Includes all standard priced goods to show profit 2-709 Seller's specific performance (Sue for Price) 1. 2-709(1)(b)--Seller can only use 2-709 if can't sell at reasonable price (seller in business and can unload goods easier) or a. Goods accepted by buyer (2-606) 7

b. Risk of loss passes to buyer and goods lost or damaged 2. Reasonable price is any price at all (if denied price, go to 2-708) Comment 2: Generally limited to where sale of goods is impracticable 3. 2-709(2)--Seller must keep goods for buyer unless 2-706 arises 2-710 Seller's ID 1. Comment: to allow all commercially reasonable expenditures made by the seller 2-711 Buyer's General Remedies for rejection/non-performance 1. 2-711(1)--Buyer may cancel and recover so much of the price as been paid (rest.) AND 2. 2-711(1)(a)--Buyer may cover under 2-712 3. 2-711(1)(b)--Buyer may recover damages and not cover under 2-713 (analogous to 2-708 for seller) 4. 2-711(2)(b)--Demand SP for identified goods under 2-716 5. 2-711(3)--W/rightful rejection or revocation if buyer has goods can get ID and sell under 2-706 [but if sells for more than ID+payments paid on price, must remit excess to seller under 2-706(6)] 2-712 Buyer's remedy to Cover 1. (k price-cover price) +ID+CD(2-715)-ES [2-712(1)] 2. Must be within reasonable time (reasonable determined by facts known at time of br.) 3. Cover done in good faith (merchants must be honest in fact and observance of reasonable commercial standards ) 4. If cover improperly, must use 2-713 5. If cover partially, part not covered use 2-713 (Interior Elevator) 6. If cover higher than MP, then can still use 2-713 (easier to prove) 7. If cover less than MP, can't use 2-713 (Get more than expect.) 2-713 Buyer's remedy if don't cover (repudiation/non-delivery) 1. ( k price -MP at time of the breach)+ID+CD(2-715)-ES 2. CL was got k-market at time of performance 3. Some cts (Oloffson) argue that buyer gets K-mar at time he learns of br., but other cts. (Cargill) argue that UCC didn't explicitly overturn the CL, so buyer measures damages at TOP but has a duty to cover. (This is contradicted by comment 3 of 2-712 that says cover isn't mandatory) 2-714 Buyer's remedy if accepts the goods 1. 2-714(2)--(Value goods warranted-actual value of goods)+ID+CD a. Calculate warranted goods by price of good on the market that would do what this good was warranted to do (Chatlos) b. If good unique, PV discounted over life of machine of increased output 2. 2-714(3)--Get ID and CD under 2-715 3. Use this if too late to revoke acceptance 4. Must notify seller upon learning of breach had

2-715 Buyer's Consequential Damages (and incidental damages) 1. 3 reqs. under 2-715(2)(a) to recover a. Damages must be foreseeable (Hadley)--seller would know contract b. Damages need to be certain 1) Comment 4 liberalizes this req. by rejecting any that requires a mathematical precision in proof c. Damages couldn't be reasonably prevented by cure or otherwise 2. Can calculate CD using rel. as a substitute for exp. 3. Rejects tacit agreement test (Had U thought of this br. would U consent to this risk) in comment 2 4. 2-715(2)(b): Personal injuries need only proximate cause for breach NOT foreseeability 5. Can't recover twice for CD and diff. in value of delivery (2-714) 2-716 Buyer wants Specific Performance 1. 2-716(1)--Can only use if goods are unique or other proper circumstance (OPC) a. OPC defined by CL and 1-106 unless otherwise stated [can't determine monetary price (Laclede Gas)] b. Comment 2 says OPC includes inability of cover Comment 2: Unique doesn't just include goods, but look at total situation 2. More liberal than CL but still requires under CL a. Ease of administration b. Not vague 2-717 Buyer may Deduct Damages from the Price 1. Buyer notifies seller of doing this

of at time of doctrine

2-718 Liquidated Damages Clause 1. Purpose: Diff. to prove up CD so this substitutes (save money by not having to litigate) 2. Won't enforce if it's a penalty [2-718(1)]--Only applies to large (comment 1: if too small look to unconscionable 2-302) a. Won't enforce if overbroad (Kemble) 3. Cts interpret this clause in two ways a. Must interpret in light anticipated or in light of actual harm 9

4. 5. 6.

7.

and if either is a penalty, strike LDC 1) Restatement says if no actual damages than any LDC is too large and should be stricken as a penalty b. Other cts. say even if overbroad in light anticipated or actual harm too small, will enforce (Southwestern) LDC is a LR if expressly made exclusive Seller can't keep deposit if it's LDC if makes more money on resale Regardless of whether LDC is penalty, seller entitled to $500 of amount buyer paid before breach or 20% of the value of the item whatever is less as restitution [2-718(2)(b)] or if LDC valid, then the sum that exceeds LD [2-718(2)(a)] The buyer's rt. under 2-718(2) is subject to offset to seller's rt. to damages besides LDC [2-718(3)] [2-719(2)]

2-719 Limitation of Remedies 1. If remedy fails of essential purpose (R and R) it is stricken a. Must determine how many times can turn in (Durfee) b. Lewis Refrigeration 2. 2-719(2) also kicks in if deny other party substantial value of the bargain regardless if purpose fails (comment 1) a. Also comment 1 says must be minimum adequate remedy 3. Some cts. argue that if central purpose fails, separate clause barring CD will stand unless it is uncons. (measured only at time of K) a. 2-719(3) says limit only if uncons. not only if uncons. and fails of central purpose 4. Other cts. say that if LR fails so does CD because 2-719(2) says person has access to remedies in Act (include 2-715) 5. Can only exclude CD if a. B is a consumer w/commercial CD loss (can't include PI) b. B is a merchant (for comm. or PI) 6. Comment 2: LR's are cumulative and not exclusive unless expressly says so

10