UCC SECTIONS conforming tender within agreed time and compensate
reasonable expenses caused by breach and subsequent cure.
1-302 Var. by agreement 2-if time of performance has expired seller can cure same as
a-except where stated UCC prov. Can be varied by agreement above if appropriate and timely under the circumstance.
b-good faith, diligence reasonableness and care cannot be 2-601 Buyer rights for failed delivery
disclaimed but standards may be set to measure as well as a a-accept the whole
time frame if reasonable. b-reject the whole
1-303 Course of perf./dealing c-reject any commercial units and reject rest
a-sequence of conduct that exists if 2-602 Rejection
1-the agreement involves repeated occasions for perf. And 2- 1-rejection must be in reasonable time after deliv/tender.
other party accepts perf. Or acquiesces without obj. while Ineffective unless seller seasonably notified
having knowledge of nature and opp. to obj. 2-a-after rejection any action of ownership over goods against
b-course of dealing is seq. of conduct concerning prev. trans. seller is wrong and
Est. common basis of understanding for interpreting b-buyer must hold rejected goods in his possession with reas.
expression and other conduct. (before agreement) care for a sufficient time to allow seller to remove
c- usage of trade is practice method or dealing found in c. buyer has no further obligation to goods rightly rejected
vocation place or trade to justify regularly enough to justify 3. seller rights to goods wrongfully rejected are def. elsewhere
expectation it would be observed 2-608Revocation of accept whole/part
d-course of perf./dealing or usage of trade may be used to 1-Buyer can revoke acceptance when non-conformity impairs
interpret parties agreement or supplement or qualify terms of its value to the buyer and it was accepted:
agreement. May also be app. To only a partial perf. a-assumption nonconformity would be cured
e-all interretations must be consistent with eachother when b-bec. Of difficulty of discovery of nonconformity or on sellers
1-express terms prevail over all 2-revocation must occur in reasonable amt of time & before
2course of perf. over dealing and usage change in cond. Of goods. Revocation not effective until buyer
3-dealing over usage of trade notifies seller.
f-course of perf. Relevant to show waiver or mod. Of terms not 4-Buyer uses goods after revocation
consistent with course of perf. a-use that is unreasonable is an acceptance if ratified by seller
2-208 Course of perf. v. Prac constr. b-use that is reasonable makes buyer owe seller the value of
1-K w/ opp. for repeated perf by either party with knowledge use to him
of perf and opp for objection by other party, any course of 2-609 Right to assurance of performance
perf accepted or acquiesced w/o objection is relevant to 1-When insecurity arises a request in writing may be used to
determining meaning of K. solicit writing insuring perf. May suspend any perf. Having not
2-same as 1-303(e)(1-3) already received agreed return.
3- course of perf shall be relevant to show waiver or mod of 3-Acceptance of improp. Deliv or payment does not stop right
any term inconsistent with such course of perf of future assurances
2-209 Mod/rec/waiver 4-Failure to provide response within 30 days is repudiation of
1-Mod. Agreements need no consid. K
2-K excluding mod. w/o signed agreement cannot be mod. or 2-706 Seller resale (opp. of Cover)
rescinded, except in writing btw merchants using a signed 1-Buyer breach seller may resell all or part of goods in good
form faith and comm.. reasonable manner (K price-
3-must comply to stat. of frauds resale+inc/conseq damages-expenses saved due to breach)
4-attempt at mod. can operate as waiver NOTE: once resale done buyer has no rights to prop. Even if
5-party who made waiver can retract waiver by reasonable resale done worng…seller keep resale profits.
notification to other party that strict perf. will be req. of any 2-708 Sellers damages for non-
term waived, unless retraction would be unjust b/c of
material change of reliance on waiver.
a-(nonacceptance) Contract price-market price at time and
2-302 Unconcionable K or clause place of tender+ incidental or consequential damages-
1-if K or any clause is unconscionable at time it was made expenses saved due to breach
court may refuse to enforce K, the clause, or modify app. Of b-(repudiation) same as above except instead of market price,
clause to avoid unconscionable result reasonable time and place after repudiation.
2-comm. Setting purpose and effect all used to determine 2- If neither work nor 2-706 then expectation (profit K
unconscionability. perf.+reasonable overhead+ incid/conseq. dam)
2-303 allocation or division of risk 2-709 Action for price
1-agreement may shift allocation and divide risk or burden 1-if buyer fails to pay price as it becomes due buyer may
2-508 Cure by Seller Improrper tender/delivery; recover incid/conseq dam. and price
replacement a-of goods accepted or conforming goods lost or damaged in
1-if time of performance has not expired, seller may cure reas. Time after risk of loss passed to buyer
breach of contract by, with seasonable notice, making
b-of goods identified to contract if seller is unable to resell needed....Seller must prove a subsequent buy was a cover and
after time, or no resale available 2-706 not just another transaction to bar use of 2-713
2-after action for price seller must hold goods for buyer and 2-716 Buyers right to specific performance or
may only resell before judge. If judge, is collected buyer gets replevin
all items incl. those that did not resell. Resale +to buyer 1-specific perf. If goods are unique or other proper
3. buyer who wrongfully repudiates/rejects is still circumstance, or if parties have agreed to spec. perf.
responsible for damages for nonacceptance under 2-708 even 2- payment of price damages or other relief
if seller loses on action for price. 3-Buyer has right to replevin if he cannot cover or if good
2-710 Sellers incidental/conseq damages have been shipped and satisfaction of security interest made
1-Incid. dam. charges/exp./comm./incurred in stopping or tendered
deliv./transp/care/custody of goods in conn. w. return/resale 4-Buyer’s rights to replevin of goods begin when buyer takes
or result form breach acquisition of special property or security interest and
2-Conseq. dam. loss from gen or partic. Req. and needs of replevin interest supercedes creditors rem interest. 2-501
which buyer had reason to know (buyer control begins when contract is formed and goods are
3-no conseq. from consumers inexistence, or when goods are made and marked or shipped
2-711 Buyers Remedies/ Security interest in (somehow designated by seller as good in contract) crops are
rejected goods made or young inconceived
(2)a-recover price paid
b-Deduct damages from amount still due Restatement sections
c-Cancel 84-Promise to perf a duty in spite of non-
d-Cover under 2-712 occurernce
e- recover dam. for non-delivery under 7-213 89- Modification of Executory Contract
f-recover damages for breach with regard to accepted goods A promise modifying a duty under a contract not fully
or remedial promise performed on either side is binding
g- recover identified goods 2-502 a-if the modification is fair and equitable in view of circ. Not
h-Obtain specific performance 2-716 anticipated by parties when K was made
i- Liquidated damages 2-718 b-to extent provided by statute
j- recover damages in any reasonable manner reasonable 2- c-to the extent justice requires enforcement in view of
712 material change of position in reliance on prom.
(3) Buyer may sell the goods in his possession to offset NOTE: 2-209 gets rid of req. for consideration for mod. of a
payments already made on the price and reasonable shipping sale of goods K.
handling and expenses. May not keep profit from sale.
(BUYER MAY STILL COVER AND SUE FOR DAMAGES AFTER
152-Mistake of Both Parties K Voidable
RESALE) 1-Where mistake of both parties at time of K has material
(4) Buyer may cancel if seller fails to make delivery or effect of perf. the K is voidable by adversely effected party
repudiates, or buyer rightfully rejects or justifiably revokes if unless he bears risk
the breach goes to the whole contract 2-To see if mistake has material effect relief by reformation
NOTE: If seller re-tenders under 2-508 no dam. can be found restitution or otherwise looked at.
except for bec. of delay. NOTE: Parol of evidence rule does not apply if proving
2-712 Cover- buyers procurement of substitute
208-Unconscionable K or Term
goods If a term is unconscionable at time of K then court may refuse
(1)if seller fails to make delivery or repudiates, or buyer to enforce K or enforce remainder of K w/o unconscionable
rightfully rejects or justifiably revokes buyer may without term, or liumit to avoid unconscionable result.
delay make a good faith purchase or contract to purchase
(2) difference in contract pice and cover price + damages 1-Where party believes the form is standard as well as terms
include incidental and consequential damages – expenses for like agreements he adopts agreement.
saved by sellers breach 2-All those similarly situated are treated alike without regard
(3) Buyer may chose not to cover and try for different remedy to knowledge or understanding of terms
NOTE:Not available if buyer accepts goods 3-Where other party would know that signer of the contract
would not agree to a term if he was aware of it, the term is not
2-713 Buyers damages for non-delivery or part of the agreement.
repudiation 241-Materiality of Failure
1(a) Damages is difference between market price at time of a-Extent to which injured party is deprived of benefit
tender and contract price b-can injured party be compensated
(b) Anticipatory repudiation-damages are difference in c-the extent of failing party suffering
contract price and market price when buyer would have d-whether failing party will cure forfeiture
covered under 2-712 (avoids buyer speculation at expense of e- whether good faith or fair dealing followed.
NOTE: If no market value established spot sales may be used,
250- When statement or act is repudiation
if item is scarce specific performance nder 2-716 may be a-a statement that obligor will breach
b-affirmative voluntary act which renders obligor unable or NOTE: May also be liable for lawsuits against injured party by
apparently unable to perf. a third party.
251-Failure to Give Assurances as Repudiation 352-Uncertainty as a Limitation on Damages
1-if it was reasonable to req. assurances and they are not Cannot recover far beyond amount established through
given may suspend and perf. that you have not already evidence with certainty
received agreed upon exchange. Proof of profits- can be found under many circs. However new
2-Obligee may treat as repudiation failure of obligor to businesses more difficult
provide within a reasonable time assurances of due perf. 373 Restitution when other party is in breach
253-Effect of Repudiation as a Breach on Duties 1-allowed to collect restitution for benefit conferred by way of
1-Repudiation gives rise to immediate claim of damages part performance or reliance
2-Duty of other party is discharged upon repudiation 2- No restitution is performance has been complete and only
261-Impracticability thing left is a definite amount of money to be paid for
When after a K a party’s perf. is made impractical w/o his performance.
fault by occurrence of event duty to render perf discharges 374 Restitution for breaching party
unless language or circ. Are contrary. If justifiably refuses to perform because duty has been
265-Supervening Frustration discharged by other party breach entitled to restitution for
After K party’s purpose is frustrated w/o his fault by benefit conferred by performance or reliance in excess of loss
occurrence/nonoccurrence of event, remaining duties to he has caused by own breach.
render perf. are discharged. NOTE: restitution can still be collected even if complete
NOTE: Frustration must be substantial, loss of profit, or taking performance of contract would have resulted in loss. (forgo
a loss is not enough. suit on contract and claim only performance)
344-Purpose of Remedies
a-protect expectation interest
b-protect reliance interest
Pre-existing Duty Rule
c-protect restitution interest Perf. of an act which the promisee was already bound to do is
not valid consideration for the modification of that act, thus
347-Meas. Of Damages(Expectation) the promisor is not held to that promise for lack of valid
a- loss in value to him of other party perf. caused by its failure, consid.
b- any other loss including incidental and consequential –
Alaska Packers-gun to the head, renegotiated price not
c-cost or other loss avoided by not having to perf. valid/no consideration
348-Alt. to Loss of Value of Perf. Austin Instruments-Duress is found because Austin
1- Breach delays use of prop. and damages are not certain demands a better price and the second contract, and Doral
may recover for rental value of prop. tries but cannot find a new co. to supply the parts in time.
NOTE: if it is property that would have made a profit, then Unconsionability-“substantive fairness”
profit is damages, only use this if profits cannot be proven. 1-Did both have meaningful choice?
2-Breach results in defective or unfinished constr. and loss a)how K was entered into, education etc.
not prove with cert. may recover either b)K terms unreasonably favoring seller
a-diminution of market price of prop Heningsen v. Bloomfield Motor
b-reas. cost of completing perf. or remeding defects if cost is Court found could not contract out of implied contract and
not disproportionate to probable loss of value to him. personal injury liability
3- if breach of a conditioned fortuitous event and it is Frigaliament v. BNS
uncertain whether it would have occurred had there been no Peerless Doctrine
breach, may recover damages based on value of right at time No contract agreed upon, no claims
of breach. Cancel all outstanding obligations
NOTE: Ex. Of part 3 A horse is wrongfully not allowed to run
in a race for 100k. The owner of the track would owe 25k in
damages bec that was the chance of the horsewinning. Value Wood v. Lucy-court recognizes reasonable efforts as valid and
is “chance of winning” mutual
Bloor v Falstaff- Do not have to spend into bankruptcy to
349-Damages Based on Reliance fulfill best efforts
350-Damages are not recoverable for loss that the Feld v Henry S. Levy- For output contract, cannot discontinue
injured party could have avoided without undue risk burden output to divert the materials to another more profitable
or humiliation. product, but can pull out of business all together.
351- Unforeseeability and limitations on damages Doctrine of Economic Waste- Cost of remedy is very
1-Damages not recoverable for loss unforeseeable at time large but the market value will only change a tiny bit then the
contract was made. court will not force change.
2-Losses may be probably because they follow from breach Doctrine of Substantial Performance
1 in ordinary course of events When contract is substantially performed can request
2 as a result of special circumstances the party was aware of payment.
Ex Ante- Judged at time of transaction
Ex Post- Judged after the event
2-Overcomes will without convincing judgement
3-High pressuer- mental oral and emotional weakness
4- Misrepresentation of law or fact unnecessary
5- taking advantage of weakness of mind
6-Gross and unfair advantage of necessity or duress.
Quantum Meruit- Action to get unjust enrichment. Suing
for what he deserved