Differences: (not Ginuwine) but between the UCC and Restatements

UCC Common Law

A definite and seasonable expression of acceptance Battle of the Forms
or a written confirmation which is sent within a Offer is given- i) invites acceptance, ii) definite,
reasonable time operates as an acceptance even and iii) communicated
though it states terms additional to or different Mailbox Rule:
from those offered or agreed upon, unless i) acceptance must be in like manner
acceptance is expressly made conditional on assent that offer was given (i.e. mail for
to the additional or different terms. mail, fax for fax, note for note,
roughly)
(2) The additional terms are to be construed as ii) Acceptance counts from the time it is
proposals for addition to the contract. Between put in the mailbox, or rough
merchants such terms become part of the contract equivalent if there isn’t a mailbox.
unless: iii) Doesn’t matter if offeror revokes,
doesn’t count if the acceptance is in
 (a) the offer expressly limits acceptance to the mail.
the terms of the offer; But, what if the acceptance has a different term?
 (b) they materially alter it; or General Rule is that an acceptance with a
 (c) notification of objection to them has different term isn’t an acceptance at all.
already been given or is given within a i) New addition of term = new offer,
reasonable time after notice of them is which means that
received. ii) It is both a rejection of the first offer,
and a counter-offer in itself.
(3) Conduct by both parties which recognizes the But
existence of a contract is sufficient to establish a iii) If they go ahead and act upon that
contract for sale although the writings of the parties counter-offer, then they have
do not otherwise establish a contract. In such case accepted by performance.
the terms of the particular contract consist of those AND
terms on which the writings of the parties agree, iv) The terms will be those of the
together with any supplementary terms counter-offer (the last
incorporated under any other provisions of this Act. correspondence)
UNLESS
v) The term is a material one (oh yeah,
you remember this, the old circular
argument of materiality)
Statute of Frauds
If it falls within the Statute of Frauds then it must
have a writing to be enforceable.

Exception: Part Performance in Subsection 3; a K

that does not satisfy [a writing and <$500]; but
which is valid in other respects, is enforceable in
respect to goods for which payment has been made
and accepted, i.e. buyer has sent payment and
seller accepted payment; or seller sent goods and
buyer accepted them.
1) Is it for the transfer of land? (this can
include leases, renting, or buying)
i) If yes, then is there a sufficient
writing (or writings)?
ii) If no, then go to something outside
of Statute of Frauds to enforce the
promise, here, Past Performance
Doctrine:
 When there was no writing
for the sale of land,
 but there was a K between
the parties, AND
 the party seeking to
enforce it partially
performed it, AND
 the party’s performance
was induced by the other
party’s misrepresentation,
which may include
acquiescence or silence.
Sullivan—in this case,
specific performance was
the remedy for breach.

2) Is the promise for a sale of goods over $500

and between merchants? (goods are
movable commodities) (merchants means a
person who deals in goods of the kind or
otherwise by his occupation holds himself
out as having knowledge or skill peculiar to
the practices or goods involved in the
transaction or to whom such knowledge or
skill may be attributed by his employment
of an agent or broker or other intermediary
who by his occupation holds himself out as
having such knowledge or skill.)

i) Is there a sufficient writing? If yes,

then… (if no, go down to ii)
a) Is it signed by the person (or agent)
who claims there is no K?
Then it is enforceable.
To find out remedies, ask:
b) Does the writing have a quantity term?
i) K is not enforceable beyond
the quantity of goods shown in
writing.
ii) If it states that it is for the
 buyer’s output, then look to
what the past output was.
iii) If the quantity term was
decided orally, and not written
down, then the K is not
enforceable beyond
 the goods for which
payment has been
made and accepted OR
 goods which have been
received and accepted

ii) If there is no writing, is it oral?

a) Then, is the sale between
merchants? (be careful, what is
considered a merchant can be
tricky)
b) If it is oral and between
merchants then,
i) Was there a written
confirmation of the K
that was received
within a reasonable
time (goes to context
of the industry),
sufficient against the
seller, AND
ii) The party receiving it
has reason to know its
contents
c) If yes, then it is enforceable…
d) UNLESS written notice of
objection is sent within 10 days
after written confirmation is
received.
If the promise doesn’t fall within any of these
things, it can still be enforceable. Ask:
3) Are they specially made goods
i) Are they specially made for the
other party, AND
ii) Cannot be sold to anyone else, AND
iii) Has party A started production or
made commitments to start their
manufacturing
iv) Before a cancellation notice from
the other party
Then it can be enforceable
4) Has one party admitted under oath that
 there was a K?
i) Then, only enforceable up to the
quantity term the party admits.
5) Have goods already been paid for, AND
payment has already been accepted.
i) Then enforceable.
Remedies UCC 2-711-717 Recourses for Breach
Monetary Remedies:
One big difference is that Buyer gets consequential
(and incidental) damages, whereas Seller gets only Sometimes, there is no contract, but there still
incidental. may be Restitution.
If there is or isn’t a contract, the party that
1) Buyer’s Remedies for Seller’s Breach performed by still be entitled to Resitution
Includes damages if
a) Wrongful failure to deliver or perform i) P conferred a benefit on D AND
a contractual obligation ii) That it would be unjust to allow D to
b) Not tendering delivery or performance retain to benefit.
c) Repudiation (refusal of performing a Then, P is entitled to the reasonable value that he
duty) conferred.
If you notice, we’ve mostly focused on This can take the form of a quasi-contract, or an
failure to deliver implied-in-fact-contract.
THEN… Cardozo opinion regarding implied-in-fact-K’s”
2) Buyer can deduct all or any part of damages 1) “where D requests P to perform work,
from the price if AND
a) It results from the breach of the K, AND 2) P expected d to compensate him for
b) Still due under the same K, AND those services, AND
c) The buyer has notified the seller of his 3) D knew or should have known that P
intention to do so expected compensation”
OR, if Seller doesn’t deliver (which in this class is An implied in fact contract can be found to give
likely to be the case), THEN… restitution recourse.
3) Buyer can cover (which means)
a) With good faith, AND If there is a contract that is breached though,
b) Without reasonable delay Reliance is a recourse for damages.
c) Purchase goods in substitution of those a) Goal is to put P into status quo ante
due from the seller AND damages/ b) Can’t do this if D can prove that she
i) Damages are the difference would have been at a loss had the K gone
between the cost of cover and through
the K price, together with c) This will get P back the general damages,
Incidental and consequential (remember the Sears tires?)
damages
ii) (incidental damages-cost of Also, there is a recourse for expectation damages
transportation, care, custody) a) But the level of damages must be proved
iii) Consequential damages— loss by P.
resulting from needs that a b) This goes to foreseeablity: that is she can
reasonable person in the shoes prove the damages that D could
of the seller had a reason to foreseeably discern at the time of K-ing,
know at the time of K-ing. either because of words said or context.
a) Goes to what was told to
 seller, AND There’s also reliance and expectation damages
b) What could be reasonably though.
inferred. These can kind of overlap—courts will look to
OR (if Seller doesn’t deliver) THEN damages are expectancy, and if the breach is an economic
a) The market price/ at the time of tender/ one, the expectation damages will be negative,
under the K, AND (that is both parties will lose money if the
b) The price of the K, AND contract if the contract is enforced), therefore it
c) Any incidental or consequential damages is very unlikely that reliance will be used as a
recourse for damages. –Cosse Theorem

If there is no adequate monetary compensation

for the breach, then the court may order specific
performance. (this is pretty serious though)
Court generally does not order specific
performance.
a) Usually used for property. We looked at
a case where P had made improvements
to the land, and also given D a down
payment.
What if Buyer is in Breach?
1) Buyer in Breach, Buyer has Goods
(presumably buyer didn’t pay seller)
Seller can recover
a) The price of goods at the time of the
acceptance (not the time of the K,
although could be the same)
b) And incidental damages (notice not
consequential)
2) Buyer in Breach, Seller has goods
Maybe Seller made Buyer a special item, (I
dunno, we went over it in class) or Buyer
fails to pay the price as it comes due.
Seller can recover the price
a) Of goods identified to the contract IF
b) The seller is unable, after reasonable
effort, to resell them at a reasonable
price
OR IF
c) The circumstances reasonably indicate
that such effort will be unavailing (seller
can keep goods and get K price)
AND
d) Seller gets incidental damages