chapter 11 sales leases and e contracts
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Chapter 11 Sales, Leases, and E-Contracts. Introduction. Facilitates commercial transactions. UCC Article 2: Sale of Goods. Modifies common law of contracts of some areas. UCC 2 preempts common law. Where UCC2 is silent, common law governs. §1: The Scope of UCC 2— The Sale of Goods.

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  • Facilitates commercial transactions.
  • UCC Article 2: Sale of Goods.
    • Modifies common law of contracts of some areas.
    • UCC 2 preempts common law.
    • Where UCC2 is silent, common law governs.
1 the scope of ucc 2 the sale of goods
§1: The Scope of UCC 2—The Sale of Goods
  • Does not apply to real estate unless there is a “good” that can be severed by the Seller. If the good is severed by the Buyer, then UCC2 does not apply.
  • Generally contracts for services are not governed by UCC2.
  • What if Goods and Services combined?
scope of article 2
Scope of Article 2
  • UCC2 applies to the “sale of goods.”
    • A “sale” is the passing of title of “goods” to/from a “merchant” (seller or buyer) for a price (money, goods, services,etc).
    • “Goods” are tangible and movable.
    • A “merchant” has special business expertise and is not a casual buyer/seller.
2 scope of ucc 2a leases
§2: Scope of UCC 2A-Leases
  • Contract for lease of personal goods between a lessor and a lessee.
  • Consumer Leases (total payments less than $25,000).
  • Finance Leases (involves a 3rd party-supplier).
3 amendments to articles 2 and 2a
§ 3: Amendments to Articles 2 and 2A
  • 2002 Amendments attempt to accommodate electronic commerce.
  • Article 2 consistent with UETA and E-SIGN.
  • “Writing” is now “record.”
4 formation of sales and lease contracts
§4: Formation of Sales and Lease Contracts
  • At common law once a valid offer is unequivocally accepted, a binding contract is formed.
  • UCC is more flexible, and allows for open pricing, payment, and delivery terms.
open terms
Open Terms
  • UCC 2-204: even if terms of are undetermined, a contract may still exist.
    • Open Terms: “Indefiniteness” is OK as long as the parties intended to make a contract and there is a reasonable basis for a court to grant a remedy.
open terms9
Open Terms
  • Open Price Term: If parties have not agreed on pricing, court can determine “reasonable price at the time of delivery.” UCC2-305.
  • Open Payment Term: Unless otherwise agreed, payment is due on delivery (COD). UCC2-310(a).
  • Open Delivery Term: Unless otherwise agreed, buyer takes delivery at the Seller’s place of business. UCC2-308(a).
open terms10
Open Terms
  • Open Quantity: generally courts will not impose a quantity. UCC2-306. Exceptions:
    • Requirements Contract: buyer agrees to purchase what the buyer needs or requires.
    • Output Contract: buyer agrees to buy all of seller’s production or output.
merchant s firm offer
Merchant’s Firm Offer
  • At common law, an offer could be revoked any time prior to acceptance, unless there was some consideration.
  • At UCC, offer made by merchant in a signed writing is irrevocable for reasonable period of time. No consideration necessary.
  • Any reasonable means of acceptance under the circumstances is permissible.
  • Promise to ship or prompt shipment is acceptance.
  • Shipment of non-conforming goods is both an acceptance and a breach unless goods sent as an “accommodation” to buyer (UCC2-206).
additional terms
Additional Terms
  • If either party is a non-merchant, the contract is formed according to original terms of the offer.
  • If both parties are merchants, contract incorporates new terms unless:
    • (1) original offer expressly limits terms, or
    • (2) material change, or
    • (3) offeror objects within reasonable time.
5 consideration
§ 5: Consideration
  • UCC requires consideration and modifications must be made in good faith.
  • Modification must be in writing if required by Statute of Frauds.
6 statute of frauds
§ 6: Statute of Frauds
  • Sale of goods over $500 must have a signed writing to be enforceable.
  • Exceptions to this rule:
    • Specially manufactured goods.
    • Admissions by breaching party.
    • Partial performance.
    • Merchant doesn’t object within 10 days.
  • Oral agreement enforceable after written confirmation between merchants.
7 title risk and insurable interest
§ 7: Title, Risk and Insurable Interest
  • Sale of goods requires different rules than real property transactions: risk should not always pass with title.
  • UCC replaces title with identification, risk, and insurable interest.

For any interest to pass to buyer, goods must be:

  • In existence.
  • Identified as specific goods in the sales contract (by serial numbers and/or physically separated from others. Except for fungible goods which do not need separation).
identification 2
Identification [2]
  • Gives the buyer the right:
    • To obtain insurance on the goods.
    • To recover from third parties who damage the good.
  • Identification occurs:
    • If goods are designated when contract is made. If goods are not designated when contract is made, then identified at time of designation.
when title passes
When Title Passes
  • Title can pass:
    • Upon physical delivery, or
    • When agreed to by the parties, or
    • If no agreement, depends on whether contract is shipment or destination contract:
      • Shipment: title passes at time and place of shipment.
      • Destination: title passes when goods are tendered at the destination.
  • Case 11.1:In re Stewart (2002).
delivery without movement of goods
Delivery Without Movement of Goods
  • Title passes when agreed by the parties, or
  • With document of title: when and where document delivered.
  • Without document: when sales contract is made, if goods have been identified or when identification occurs if they have not been identified.
risk of loss
Risk of Loss
  • ROL is important because of insurance concerns.
  • ROL does not necessarily pass with title.
  • Unless agreed otherwise, ROL passes to Buyer depending on whether delivery is with or without movement of the goods.
rol delivery with movement
ROL: Delivery With Movement
  • Shipment Contracts.
    • ROL passes to Buyer when tendered to Carrier. If goods damaged in transit, Buyer’s loss.
  • Destination Contracts.
    • ROL passes to Buyer when goods tendered at particular Destination.
rol delivery without movement of goods
ROL: Delivery Without Movement of Goods
  • Goods Held by Seller:
    • Document of Title is generally not used.
    • If Seller is a merchant, ROL passes when buyer takes physical possession of goods.
  • Goods Held by Bailee (Warehouse). ROL passes when:
    • Buyer receives document of title; bailee acknowledges Buyer’s right to goods and buyer receives title and has reasonable time to pick up.
rol conditional sales
ROL: Conditional Sales
  • Sale on Approval.
    • ROL passes when buyer approves expressly or implicitly.
  • Sale or Return. (Consignment is sale or return unless it complies with Art. 9.)
    • ROL passes to buyer with possession.
rol in breach of contract
ROL in Breach of Contract
  • Generally breaching party bears ROL.
  • Seller’s Breach.
    • Rejection - risk stays with seller.
    • Revocation of acceptance - risk passes back to seller to the extent that buyer’s insurance does not cover the loss.
  • Buyer’s Breach. Goods are identified, risk passes to buyer for a reasonable amount of time after seller learns of the breach, to the extent that seller’s insurance does not cover loss.
insurable interest
Insurable Interest
  • Buyer has an insurable interest in goods that have been identified.
  • Seller has an insurable interest in goods as long as they retain title or a security interest.
  • Both buyers and sellers can have an insurable interest at the same time.
8 performance of sales and lease contracts
§ 8: Performance of Sales and Lease Contracts
  • Seller must transfer and deliver conforming goods.
  • Buyer must accept and pay for conforming goods.
  • In the absence of an agreement between Seller and Buyer UCC Article 2 controls as set out below.
good faith requirement
Good Faith Requirement
  • Good Faith is the foundation of every UCC commercial contract.
  • Good faith means honesty in fact.
  • For a merchant, it means honesty in fact and observance of reasonable commercial standards of fair dealing in the trade. Merchants are held to a higher standard of care than non-merchants.
obligations of the seller or lessor
Obligations of the Seller or Lessor
  • Seller has a duty to “tender” delivery of “conforming goods.”
  • Tender means “delivery” to agreed place:
    • With reasonable notice.
    • At a reasonable hour.
    • In a reasonable manner.
    • Exactly, unless otherwise agreed.
place of delivery
Place of Delivery
  • If no place designated, Buyer picks up at Seller’s place of business or, if Seller has no place of business, then Seller’s residence.
  • If contract involves identified goods, and the goods are located somewhere else (e.g., a warehouse), then the location of the goods is the place of delivery.
the perfect tender rule
The Perfect Tender Rule

If goods, or tender of delivery, fail in any respect to conform to the contract, the Buyer has the right to:

  • Accept the goods;
  • Reject the entire shipment; or
  • Accept part and reject part.
exceptions to the perfect tender rule
Exceptions to the Perfect Tender Rule
  • Agreement of the Parties.
  • Cure.
  • Substitution of Carriers.
  • Installment contracts.
  • Commercial Impracticability.
  • Destruction of Identified goods.
  • Cooperation and Assurance.
exceptions agreement of the parties
Exceptions: Agreement of the Parties
  • Parties agree that some defective goods will be acceptable.
  • Parties agree that defective goods can be replaced or repaired within a certain time.
exceptions seller s cure
Exceptions: Seller’s Cure
  • Seller has the right to “Cure” (ship conforming goods to Buyer) if:
    • Agreed time of performance has not yet expired; or
    • If Seller had reasonable grounds to expect that Buyer would accept non-conforming goods, i.e., these goods are better than goods ordered, or Buyer has accepted non-conforming goods in the past.
exceptions substitution of carriers
Exceptions: Substitution of Carriers

If a carrier becomes impracticable or unavailable through no fault of either party, a commercially reasonable substitute is acceptable.

exceptions commercial impracticability
Exceptions: Commercial Impracticability
  • Occurrence of an unforeseen contingency that makes performance impracticable.
  • Nonoccurrence was a basic assumption on which the contract was made.
  • If only partial impracticability, Seller must allocate what he/she has.
exceptions installment contracts
Exceptions: Installment Contracts
  • Installment Contracts can be rejected if:
    • installment is substantially non-conforming and can’t be cured.
    • non-conforming installment substantially impairs the entire contract.
exceptions destruction of goods
Exceptions: Destruction of Goods
  • If no fault of either party and it occurs
  • Before risk passes to Buyer then
  • Both Seller and Buyer are excused from performance.
exceptions cooperation
Exceptions: Cooperation
  • Sometimes unforeseen event only partially affects Seller’s capacity to perform.
  • In that event, Seller has duty to reasonably allocate any remaining production capacity to fulfilling contractual performance.
  • Buyer has the right to reject.
  • Case 11.2:Koch Materials Co. v. Shore Slurry Seal, Inc. (2002).
obligations of the buyer or lessee
Obligations of the Buyer or Lessee
  • Furnish facilities reasonably suited for receipt of the goods.
  • Make payment at the time and place the Buyer receives the goods.
    • Credit has to be prearranged.
      • Credit period begins on the date of shipment.
    • Pay with cash, credit card, check.
      • But if Seller asks for cash, Seller has to give Buyer time to get cash.
buyer s obligations
Buyer’s Obligations
  • Buyer has right to inspection before paying:
    • Costs of inspection borne by Buyer.
    • However, C.O.D., C.I.F. and C&F give Buyer no right to inspect.
  • Buyer can accept goods:
    • By words or conduct.
    • If Buyer had reasonable amount of time and failed to reject.
    • Buyer performs an act which indicates he thinks he is the owner.
  • Partial Acceptance.
revocation of acceptance
Revocation of Acceptance
  • Notify Seller of breach.
  • Revoke only if substantial nonconformity; and
    • Buyer accepted on the reasonable assumption that the Seller would cure the non-conformity OR Buyer did not discover the nonconformity because defect was latent or hard to discover.
anticipatory repudiation
Anticipatory Repudiation
  • Party communicates he will not perform by time of contract performance.
  • Non-breaching party may suspend performance and:
    • Treat the A.R. as material breach and pursue a remedy; or
    • Wait a reasonable time.
9 remedies for breach


Goods in Seller’s Possession

Goods in Seller’s Possession

Goods are in Transit

Seller delivers non-conforming goods

Goods in Buyer’s Possession

Proceed to § 10: Warranties

§ 9: Remedies for Breach

Click on the Links Below

seller goods in seller s possession
Seller- Goods in Seller’s Possession
  • Seller may withhold delivery of the goods:
    • If material breach by Buyer, Seller can withhold delivery of all goods.
    • If non-material breach, Seller can withhold delivery of this installment.
  • Seller can withhold delivery of all goods if Buyer is insolvent.


seller goods in seller s possession48
Seller- Goods in Seller’s Possession
  • Seller may rescind the contract.
  • Seller may identify the goods to the contract.
  • Seller may sell raw materials for scrap or finish production.


seller goods in seller s possession49
Seller-Goods in Seller’s Possession
  • Seller may resell the goods; and
    • Recover damages: the difference between the contract price and the resale price + incidental damages+ damages = the market price at the time & place of tender + incidental damages - expenses saved.
    • If No Damages, Seller can sue for lost profits.
  • Case 11.3:Brandeis Machinery v. Capital Crane Rental (2002).


seller goods in seller s possession50
Seller-Goods in Seller’s Possession
  • Seller may sue Buyer for breach of contract.
    • Recover Damages = the market price at the time & place of tender + incidental damages.
      • if there are no damages, Seller can sue for lost profits.


seller goods in transit
Seller-Goods in Transit
  • Goods are “in transit” when Seller has tendered goods to Carrier.
  • Goods are in transit until:
    • Buyer is given negotiable document of title to goods.
    • Buyer is given non-negotiable document of title or Bailee has acknowledged Buyer’s right to have the goods.
    • Buyer has had a reasonable time to pick up the goods.


seller goods in transit52
Seller-Goods in Transit
  • Seller has the right to stop the goods in transit if:
    • Buyer is insolvent - Seller can stop entire shipment of goods.
    • Buyer is in breach - Seller may stop a whole truckload or whole container.


seller goods in buyer s possession
Seller-Goods in Buyer’s Possession
  • Seller may sue for the purchase price.
    • Seller may also sue Buyer if goods were “specially-made” which Seller cannot resell.
    • Seller may also sue for the purchase price if the goods were destroyed and the risk had already passed to the Buyer.
  • Seller can reclaim goods received by an insolvent Buyer if demand made within 10 days of receipt.


buyer goods in seller s possession
Buyer-Goods in Seller’s Possession
  • Buyer Wants Goods
    • Specific performance or replevin
    • Recover goods from Seller if Seller becomes insolvent within 10 days after receiving first payment.
  • Buyer Does Not Want Goods
    • Rescind contract.
    • Cover or do not cover and sue for breach of contract. Case 22.2: KGM Harvesting v. Fresh Network (1995).


buyer seller delivers nonconforming goods
Buyer-Seller Delivers Nonconforming Goods
  • If Seller does not make perfect tender Buyer has the right to reject all or part of goods.
    • Buyer must timely notify Seller of rejection and reasons and follow Seller’s directions.
    • Buyer is entitled to commission for selling perishable goods.
    • Buyer may store the goods and retain a security interest in the goods for his costs.


buyer seller delivers nonconforming goods56
Buyer-Seller Delivers Nonconforming Goods
  • If Buyer has accepted non-conforming goods, she may:
    • Sue for breach of warranty.
    • Sue for ordinary damages.
    • Deduct damages from purchase price.


contractual provisions affecting remedies
Contractual Provisions Affecting Remedies
  • Limitation of Damages.
  • Limitation of Remedies.
  • Waiver of Defenses.
10 sales and lease warranties
§ 10: Sales and Lease Warranties
  • A warranty is an assurance of fact upon which a party may rely.
    • Warranty of Title.
    • Express Warranty.
    • Implied Warranty of Merchantability.
    • Implied Warranty of Fitness for a Particular Purpose.
    • Implied warranty arising from the course of dealing or trade usage.
warranty of title
Warranty of Title
  • Automatically arises in most commercial sales transactions.
  • UCC-312 creates 3 warranties:
    • Good Title.
    • No Liens.
    • No Infringements.
warranty title disclaimer
Warranty Title Disclaimer
  • Title warranty can generally be disclaimed only with specific language in contract.
  • Circumstances may be obvious to clearly indicate disclaimer of title, such as a sheriff’s sale.
express warranties
Express Warranties
  • Can be oral or written-- don’t have to use the words “warrant” or “guarantee.”
    • Any Affirmation or Promise.
    • Any Description.
    • Any Sample or Model.
express warranties62
Express Warranties
  • To create an express warranty, the affirmation of fact must become the “basis of the bargain.”
  • And Buyer must rely on warranty when he enters into contract.
express warranties63
Express Warranties
  • Statements of Opinion and Value.
    • Generally excludes “puffing” – “Best car in town”, not an express warranty.
    • However, expert opinion is not puffery.
implied warranties
Implied Warranties
  • Warranty inferred at law based on the circumstances or nature of the transaction.
  • Under the UCC, merchants warrant the goods they sell are “merchantable”, i.e., fit for ordinary purpose for which such goods are sold.
implied warranty of merchantability
Implied Warranty of Merchantability
  • Automatically arises from merchants.
  • Goods are of average, fair, or medium-grade.
  • Adequately packaged and labeled.
  • Conform to promises on label.
  • Have a consistent quality and quantity among the commercial units.
implied warranty of fitness for a particular purpose
Implied Warranty of Fitness for a Particular Purpose
  • Arises by any Seller who:
    • Knows the particular purpose for which the goods are being bought; and
    • Knows the buyer is relying on seller’s skill and judgment to select suitable goods.
implied warranty arising from course of dealing or trade usage
Implied Warranty Arising from Course of Dealing or Trade Usage
  • Arises when both parties to a contract have knowledge of a well-recognized trade custom. Courts infer that both meant this custom to apply to their transaction.
warranty disclaimers
Warranty Disclaimers
  • Express Warranties can be disclaimed:
    • If they were never made (evidentiary matter).
    • If a clear written disclaimer in contract with specific, unambiguous language and called to Buyer’s attention (BOLD CAPS UNDERLINED).
warranty disclaimers69
Warranty Disclaimers
  • Implied Warranties:
    • Merchantability: “As Is,” “With All Faults.”
    • Fitness for a Particular Purpose: must be in writing and conspicuous.
    • If Buyer has the right to fully inspect and either: does so or refuses to do so, warranties are disclaimed as to defects that could reasonably be found.
  • Case 23.3:International Turbine Services v. Vasp Brazilian Airlines (2002).
11 e contracts
§ 11- E-Contracts
  • Most courts find E-Contracts involve basic principles of contract law, applied in the online context.
online contract formation
Online Contract Formation
  • Online Offers should include:
    • Remedies for Buyer.
    • Statute of Limitations.
    • What constitutes Buyer’s acceptance.
    • Method of Payment.
    • Seller’s Refund and Return Policies.
    • Disclaimers of Liability.
    • How Seller will Use Buyer’s Information (Privacy).
online contract formation72
Online Contract Formation
  • Dispute Settlement Provisions.
    • Choice of Law.
    • Choice of Forum.
    • E-Bay uses online dispute resolution.
  • Displaying the Offer (via hyperlink).
  • How Offer Will Be Accepted.
    • “I Accept” Button to Click.
online acceptances
Online Acceptances
  • Click-on Agreements.
  • Shrink-Wrap Agreements.
    • Contract terms are inside the box.
    • Party opening box agrees to terms by keeping merchandise.
  • Enforceable Contract Terms. (UCC 2-204).
  • Additional Terms.
online acceptances74
Online Acceptances
  • Click-On Agreements occur when Buyer “checks out” or clicks on “I Accept” button on Seller’s website or when software is installed.
  • Browse-Wrap Terms.
  • Case 11.5:Specht v. Netscape Communi-cations (2002).
e signatures
  • E-Signature Technologies.
    • Asymmetric Cryptosystem.
    • Cyber Notary.
  • State Law Governing E-Signatures.
    • Uniform Electronic Transactions Act (1999).
  • Federal Law.
    • E-SIGN (2000) gives e-signatures and e-documents legal force.
  • Purpose is to remove barriers to forming electronic commerce.
  • E-Signature is “electronic sound, symbol or process…associated with a record and… adopted by a person with intent to sign the record.”
  • UETA applies only to e-records and e-signatures relating to a transaction.
ueta and e sign
  • E-SIGN explicitly refers to UETA.
  • Provides that E-SIGN is pre-empted by state passing of UETA.
  • But state law must conform to minimum E-SIGN procedures.
highlights of ueta
Highlights of UETA
  • Parties must agree to Conduct Transactions Electronically.
    • A party can “opt out” of UETA terms.
  • Attribution—process to ensure person sending an electronic record is in fact the real person.
  • Electronic Errors.
  • “E-Mailbox” Rules.
    • Dispatched when leaves control of sender.
    • Received when enters recipient’s processing system.
  • Applies to computer information.
  • Software is not a “good” but intellectual property.
  • Software is licensed, not sold;
  • License contract gives Buyer (Licensee) only specific rights.
  • Attribution and Authentication.
  • Mass Market Licenses.
law on the web
Law on the Web
  • National Conference of Commissioners.
  • U. Penn Final Draft of Uniform Laws.
  • UCC at Cornell U.
  • Commercial Law at Hale-Dorr.
  • Legal Research Exercises on the Web.