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J. Ryan Gilfoil — Eisenberg, Contracts 2004S

I

What is a merchant: someone who deals in this type of goods or holds self out as having knowledge or skill specific to these types of goods.  (UCC § 2-104)

II

Crossing / countermanded rejection, acceptance

A

If offeree mails acceptance, then rejection, acceptance trumps b/c of mailbox rule

B

But if offeree mails rejection, then acceptance, acceptance will only trump if it arrives first.  If it arrives last, it is a counter-offer

III

PAROL EV rule: parol ev won’t be admitted to VARY, ADD TO, or CONTRADICT a WRITTEN contract that constitutes an INTEGRATION

A

EXAM APPROACH:

1

Integration?  If not, then evidence allowed

a

Tests:

i

Four corners: if looks complete, then is total integration

ii

UCC/Rest: intent determinative.  All evidence admissible to determine whether total integration

2

Term inconsistent?  If so, then ev not allowed

a

Tests: logical inconsistency, r’ble harmony

3

Term is add’l / not-inconsistent

4

Would term have been omitted?

a

Tests:

i

Would parties NATURALLY have omitted?  Then excluded, else admitted.  (Rest)

ii

Would parties CERTAINLY have omitted?  Then excluded, else admitted.  (UCC § 2-202)

5

BUT exceptions

a

Prior agr’t supported by separate consid; to show mistake; to show fraud/duress/etc; others

BIG ISSUES

I

Mistake

II

Substitute K (accord)?  Mod to existing K?  INTERPRETATION

III

Changed circums

IV

Interpretation: each party’s r’ble interp, four corners

V

Parol ev

VI

UCC § 2-207

Exam Approach

I

Requirements for a K: MUTUAL ASSENT and CONSIDERATION

II

Was there offer/acceptance?

A

Consider each communcation.  Was it an invitation to bid, an offer, a revocation, etc?

B

For offer, need intent and definiteness.  Note if option

C

For acceptance, consider

1

Was power of acceptance terminated?

a

Revocation, lapse, counter-offer, rejection

2

Valid acceptance?

a

Was it timely?

b

In proper form (does offer require acceptance by promise or by act)?

c

Does it deviate from offer?  If so, only acceptance if it:

i

Spells out implied term of offer (i.e., doesn’t add anything)

1

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