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1

Betw merchants, if a written conf of the K is sent by the seller w/in r’ble time after the sale, S/F is satisfied unless purchaser objects in writing w/in 10 days after receiving confirmation.  (UCC § 2-201(2))

2

Goods are to be specially mfr’d and are not suitable for sale to others in normal course of business and seller has made substantial commitment toward mfr.  (UCC § 2-201(3))

3

Buyer accepts goods (then enforceable as to goods accepted).  (UCC § 2-201(3))

4

Buyer makes part payment (then enforceable as to goods for which payment has been made).  (UCC § 2-201(3))

III

Part perf

A

Part perf does not excuse the one-year provision unless perf is complete on one side (TODO???)

IV

Modern trend is for promissory estoppel to take K out of S/F

A

Some cts will give rel dams

B

Some will even give exp dams

C

Cts will always give restitution

V

What is req’d in writing (for OTHER THAN sale of goods)

A

Identities of parties; description of subj matter of K; terms & conditions of K

Third-Party Beneficiaries

I

EXAM APPROACH

A

Classify third party as incidental or intended (or donee or creditor) bene

1

Intended may sue; incidental may not

B

Consider whether any defenses avail to promisor against the promisee

C

If promisor and promisee have attempted to modify K, and if 3d party has right to enforce, consider whether rights of 3d party have vested

II

Classification of benes

A

Old rule:  (Lawrence)

1

Creditor bene = bene of promise whose intent was to discharge obl owed to the bene

2

Donee bene = bene of promise whose intent was to confer a GIFT or a RIGHT on bene

a

Ex: car dealer contracts w/ ins co to indemnify all customers of dealer against fire or theft for one year.  Customer of car dealer is donee bene under “right” theory, not gift

3

Others = incidental benes

B

Modern view:  (Rest § 302)

1

Intended bene = bene w/ ELTS:

a

Recognition of right to enforce in bene is appropriate to effectuate INTENTION of the parties under the K

b

AND perf of promise will satisfy obl to pay money to bene OR promisee intended to give bene the benefit of the promise

C

Eisenberg’s view:

1

Allow 3d party to enforce where:

a

Allowing 3d-party bene to sue serves promisee’s intention under the K

b

Allowing 3d-party bene to sue doesn’t expose promisor to greater liability than he intended to assume

III

Common situations:

A

Would-be legatee.  May enforce as donative benes.  (Hale v. Groce)

B

Government contracts

1

Rest view.  Enforceable where:  (Rest § 313)

a

Terms of K explicitly or impliedly provide for 3d-party liability

32

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