Contracts Commons^™

Article 5 - Recent Developments, James J. White

Other Publications

I. Mitigation in Letter of Credit Transactions Assume a Buyer has procured a letter of credit to pay for contracted goods but no longer wants the goods. The Buyer and the Issuer would like to force the Beneficiary to mitigate. Assume that both the Issuer and Applicant repudiate their obligation or that the Applicant has failed and the Issuer repudiates its obligation to pay under the letter of credit. At the moment of repudiation the price for a gallon of the underlying oil that is the subject of the letter of credit is $.75 and that the letter of credit …

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

Articles

The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.

The Intersection Of Articles 2 And 9, Steven L. Harris, James J. White

Other Publications

I. Standard Form Contracts II. Buyer in Ordinary Course; Prepaying Buyer III. Consignments IV. Seller's Right to Reclaim Delivered Goods

The Use Of Penalty Clauses In Location Incentive Agreements, Matthew T. Furton

Indiana Law Journal

No abstract provided.

15th Annual Legal Issues For Financial Institutions Conference, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Walter R. Byrne Jr, Mark F. Sommer, Lisa Koch Bryant, Leonard A. Watkins, Thomas W. Grundy, Joann B. Heppermann, James C. Seiffert, William H. Haden Jr., T. Richard Riney, Marcus P. Mcgraw, W. Bradford Boone, John T. Mcgarvey, James F. Rose, J. Rick Jones, M. Thurman Senn, M. Brooks Senn

Continuing Legal Education Materials

Program and materials from the 15th Annual Legal Issues for Financial Institutions Conference held by UK/CLE on March 10-11, 1995.

The Intersections Of Articles 2 And 9: Recommendations For Clarification And Revisions, Richard E. Speidel, James J. White

Other Publications

Both Article 2, Sales and Article 9, Secured Transactions are under revision. The process of coordination is underway, but there is still much work to do. The following materials identify the major issues at the intersections and some tentative solutions. All references are to the 1990 Official Text of the Uniform Commercial Code unless otherwise stated. When stated, references are to the October, 1995 Draft of Article 2 and the July, 1995 Draft of Article 9.

Warranties And Remedies On Breach: Proposed Revision Of Article 2 And Related Proposals Concerning Products Liability Law, Richard E. Speidel, James J. White

Other Publications

The following materials contain (1) the warranty provisions, §§2-313 through 2-318, from the October, 1995 Draft of Revised Article 2, Sales, with selected Reporter's Notes; (2) Discussion questions on warranties; and (3) A comparison of Revised Article 2 and the ALl's Products Liability Restatement (Tent. Draft #2, March 13, 1995), with discussion problems.

They Came From "Beyond The Pale": Security Interests In Tort Claims, Harold R. Weinberg

Law Faculty Scholarly Articles

"[B]eyond the pale" is how the drafters of Article Nine of the Uniform Commercial Code regarded tort claims. They considered tort claims to be noncommercial assets inappropriate for inclusion as collateral within the scope of a commercial financing statute. Tort claims may not be out-of-bounds much longer. The Article Nine Study Committee of the Permanent Editorial Board for the Uniform Commercial Code recommends expansion of the Article's scope to encompass security interests in claims arising out of tort. This recommendation is significant. Tort causes of action comprise an ever-expanding universe of civil wrongs for which courts afford redress. The owners …

Article 5: Highlights Of The Proposed Revision, James J. White

Other Publications

I. The Current Status of Article 5: Drafting, Approval and Promulgation--The Most Significant Changes or Clarifications -- II. The Most Contentious Issues in the Revision of Article 5 -- III. More Subtle Questions About Revised Article 5

The Reunification Of Contract: The Objective Theory Of Consumer Form Contracts, Michael I. Meyerson

All Faculty Scholarship

Despite the ubiquitousness of standard form contracts in the world of consumer transactions, there is no consensus as to how these contracts ought to be constructed. Some courts continue to treat form contracts as if they were classically negotiated contracts. Others attempt in a variety of ways to factor in the reality that consumers entering into these contracts are not able to negotiate the terms and almost always sign these documents, which are presented on a take-it-or-leave-it basis, without reading them. This article posits that the cause of this continued confusion over form contracts is due to a basic failure …

Frontispiece On Good Faith: A Functional Approach Within The Ucc, Christina L. Kunz

Faculty Scholarship

This article examines areas of the law with thin jurisprudences on good faith, and how the Uniform Commercial Code’s (UCC’s) express statutory rules have become an active laboratory of experiments on good faith. Part I discusses the general obligation of good faith under the UCC. Part II lays out and discusses how the specific UCC provisions on good faith serve one or more of the following functions: restrict the exercise of one-sided power in a contract, in order to avoid unfair or unexpected results; restrict the range of possible responses to defective performance or to an unexpected event, in order …

The Decline Of The Contract Market Damage Model, James J. White

Articles

In law school every American lawyer learns that the conventional measure of damages for breach of a sales contract is the difference between the contract price and the market price. Even before these rules were embodied in the Uniform Sales Act and the Uniform Commercial Code (UCC), they were a staple of Anglo-American common law. They remain the rules with which a court would determine damage liability not only for the sale of goods, but also for the sale of real estate and securities.

Promise Fulfilled And Principle Betrayed, James J. White

Articles

My responsibility in this paper is to address three questions. (1) How has the legal realist body of thought affected contract law and its application? (2) How will contract law and its application be affected in the future by realist thinking? (3) If the realist viewpoint were fully accepted, what kind of system would result and how would contract law be affected? Because my focus is upon a principal legislative monument to realism, Article Two of the Uniform Commercial Code (the "U.C.C."), and upon its drafter, Karl Llewellyn, I will not answer any of the three questions explicitly. By focusing …

Remedies For Breach Of Contract Under The Uniform Commercial Code, The General Conditions Of Delivery Of Goods Of The Council For Mutual Economic Assistance And The United Nations Convention On Contracts For The International Sale Of Goods, Hasan T. Choudhury

LLM Theses and Essays

This thesis attempts to examine and compare an important component of any law of contract for the sale of goods, namely, the remedies available to an aggrieved party following a breach of contract. The first part of the thesis deals with the historical background of the uniform laws, their scope and specific characteristics. The following chapters examine the status, role and significance of the two major remedies - the damages and specific performance, in the major legal systems and the uniform laws. In addition, it compares the remaining remedial provisions and concludes that, although the major legal systems of the …

Ucc Section 2-714(1) And The Lost-Volume Theory: A New Remedy For Middlemen?, John Hackley

Kentucky Law Journal

No abstract provided.

Article Two Warranties In Commercial Transactions: An Update, Kathryn L. Moore, Debra L. Goetz, Douglas E. Perry, David S. Rabb

Law Faculty Scholarly Articles

In 1978 the Cornell Law Review published a Special Project devoted to Article Two commercial warranties. Nine years have since elapsed, and we have decided to update and reassess this important area of the law. We have discovered that although judicial treatment of many aspects of Article Two warranty law has remained stable, in some instances the courts' treatment has progressed and in other instances it has become unclear. This Special Project is our attempt to assemble these changes, interpret the progress, and suggest new lines of analysis to clarify areas of conflict.

Strict Liability For Chattel Leasing, Richard C. Ausness

Law Faculty Scholarly Articles

Leasing has become an increasingly popular substitute for outright purchases as a means of acquiring products for use. Few courts and commentators, however, have addressed the question of whether the principles of strict products liability which apply to sellers also apply to lessors. In this Article, Professor Ausness reviews the historical basis for imposing strict liability in tort on sellers and applies these rationales to five basic kinds of lease transactions. He concludes that strict liability should not apply when a product defect arises after the leased product is placed in the hands of the lessee (as contrasted with the …

The Collision Of Tort And Contract In The Construction Industry, Murray H. Wright, Edward E. Nicholas Iii

University of Richmond Law Review

Over the past two decades, several courts have allowed construction industry plaintiffs to assert tort claims to recover for purely economic losses (i.e. other than injury to person or property) from other participants in the construction process. Parties assert tort claims, instead of or in addition to contract claims, to take advantage of the more liberal tort damage rules and, probably more importantly, to escape unfavorable contract provisions. This article briefly discusses the different origins and goals of tort and contract law. It then reviews some of the decisions allowing recovery of purely economic losses in tort as well as …

The U.C.C. And Franchise Act Remedies: Coast To Coast Stores, Inc. V. Gruschus, Misty Ellen Mondress

Seattle University Law Review

Coast to Coast Stores, Inc. v. Gruschus was the first Washington case to deal with the potential conflict between the Uniform Commercial Code (U.C.C.) and the Franchise Investment Protection Act (FIPA), arising when a franchisor repossesses goods after a franchisee defaults under a security agreement. The Washington Supreme Court avoided the conflict, however, by holding that because the franchisor never terminated the franchise, the FIPA protections were not triggered. The U.C.C. remedies therefore applied: the franchisor could collect the proceeds of a liquidation sale of the secured goods-in this case the franchisee's inventory and supplies-in reduction of the franchisee's indebtedness; …

Modernizing Kentucky's Uniform Commercial Code, Harold R. Weinberg, Louise Everett Graham, Thomas J. Stipanowich

Law Faculty Scholarly Articles

In 1958 Kentucky became the third state to enact the Uniform Commercial Code promulgated by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. The General Assembly stated that this legislation was intended to modernize, clarify and simplify the law of commercial transactions. Enactment of the Code also evidenced the legislature's intent to make Kentucky commercial law uniform with that of the other states. Subsequent General Assemblies further implemented these policies by enacting substantially all of the uniform amendments to the Code proposed by the ALI and NCCUSL through 1964.

Unfortunately, these enactments represent our …

Corporations And Corporate Agents: Liability On Commercial Paper Contracts And Attainment Of Holder Status, Harold R. Weinberg

Law Faculty Scholarly Articles

This article focuses on two classes of commercial paper issues. Section I considers the Uniform Commercial Code rules relevant to determining whether a corporation or its agents are bound by contracts made upon a negotiable instrument. Application of these rules continues to be an important and recurrent source of legal disputes. Section II considers the rights of corporations or their agents to obtain holder status prerequisite to enforcing commercial paper contracts. Problems relating to the attainment of this status can result from corporate engagement in joint-enterprise with artificial or natural persons and from the linkage of corporations through common ownership …

Twisting Slowly, Slowly In The Wind: The Effect Of Delay On A Surety's Obligations In Virginia, Michael J. Herbert

University of Richmond Law Review

It is a commonplace among lawyers that the surety, especially the uncompensated surety, is a favorite of the law whose obligations are strictly construed, and with whose sacred rights no designing creditor dare tamper with impunity. In fact, a more reliable maxim might be that "the [surety's] lot is not a happy one." While at common law any change in the obligation of the principal to the creditor discharges the surety, this rule, in many respects, is quite meaningless; and, even where meaningful, easily circumvented. The consent of the surety to a change in the obligation generally precludes discharge, even …

Title Examination In Virginia, W. Wade Berryhill

University of Richmond Law Review

The purpose of this article is to provide an understanding of the basic procedures of title examination. The emphasis is on the mechanics and practical considerations involved in a search of title. Although the focus of any legal work is "the law," this article is not meant to be a legal treatise. It is rather a practical "how to" guide. The author hopes, however, that this writing will not only acquaint the reader with the basic techniques of title examination but will also assist the title examiner in solving the related problems which arise when some of the more common …

Contractual Disclaimer And Limitation Of Liability Under The Law Of New York, James Brook

Articles & Chapters

No abstract provided.

Eight Cases And Section 251, James J. White

Articles

[A] continuing sense of reliance and security that the promised performance will be forthcoming. . . is an important feature of the bargain-so states Comment 1 to section 2-609 of the Uniform Commercial Code. At common law, one party to a contract might suffer considerable and justifiable anxiety about the other party's willingness or ability to perform and yet have no legal basis for cancelling the contract or for procuring additional assurances from the other party. Section 251 of the Restatement (Second) of Contracts is designed to provide a remedy for one party's reasonable fears that the other party to …

Contract Law In Modern Commercial Transactions, An Artifact Of Twentieth Century Business Life?, James J. White

Articles

Diligent first year law students study contract law with a passion previously reserved for romantic objects and religious idols. Their professors lead them in extensive and difficult intellectual explorations of the wilds of contract law. There are careful analyses of why damage recovery X will stimulate performance Y, why recovery A is appropriate to encourage the aggrieved party to return to the market, and so on and so forth. Lurking behind this year long analysis are several inarticulate hypotheses: that they make rational evaluations of the threat of legal sanctions; that they respond in other varied and subtle ways to …

Secured Party's Right To Sue Third Persons For Damage To Or Defects In Collateral, Harold R. Weinberg

Law Faculty Scholarly Articles

The proverb “there is many a slip ‘twixt the cup and the lip” might have been written with the secured creditor in mind. Many tragedies may befall him to defeat his expectations. He takes his security interest hoping for the best, but preparing for the worst—nonperformance of the obligation secured. If he does not carefully comply with the Article Nine provisions concerning the enforceability and perfection of a security interest, he may ultimately be unsecured. If his security interest is enforceable and perfected, it may turn out that some other party has priority to the collateral. Even if the secured …

A Synopsis Of The Major Revisions To Article 9 Of The Uniform Commercial Code Adopted By Virginia, John W. Edmonds Iii

University of Richmond Law Review

When the Uniform Commercial Code became effective in Mississippi and South Carolina on January 1, 1968, it reached its goal of near uniform enactment. Maintaining this achievement of uniform adoption, however, has proven to be most difficult with regard to the Code's treatment of "secured transactions" in Article 9. In 1966, the Permanent Editorial Board 2 noted that there had been 337 non-uniform, non-official amendments to Article 9 of the Code. Accordingly, the Board established a Review Committee to restudy Article 9 in depth and report its findings. The study culminated in the Final Report of the Permanent Editorial Board …

Uniform Commercial Code- Breach Of Warranty- Applicable Statute Of Limitations For Personal Injury

University of Richmond Law Review

Statutes of limitation are statutes of repose, the object of which is to compel the exercise of a right of action within a reasonable time. They are designed to suppress fraudulent and stale claims from being asserted after a great lapse of time, to the surprise of the parties, when the evidence may have been lost, the facts may have become obscure because of defective memory, or the witnesses have died or dis- appeared.

"Good Faith" In General Contract Law And The Sales Provisions Of The Uniform Commercial Code, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.