Common Law vs. UCC (Article 2) - The Major Differences on the UBE for the MEE and MBE

-

         One of the more common questions posed by my students over the years is “does a chart exist that highlights the major UBE differences between the Common Law and the UCC?”  The short answer is, yes! Please see below.  Note – There are some additional subtle / nuanced differences between the UCC and the Common Law throughout the subject of Contracts and this chart is NOT meant to be exhaustive, however it certainly does highlight the heavily tested differences between the two.

        BAR EXAM NOTE – It is suggested to not only study / review the chart below, but to create your own, smaller / shorter version so that 1) you can take ownership over your own notes/work making it easier to memorize / retain and; 2) be sure to review your chart or notecards every weekend, so that the law sticks.  Should you have any questions about the content below, feel free to send us an email!

 

Area of Law

Common Law

UCC

Keeping Offer Open

Lapse of reasonable time kills offer. Option to keep offer must be supported by consideration.

If either party dies before acceptance, then offer is revoked.

Firm offer rule, can keep offer open for 3 months w/o consideration if:

1)      Offer to buy or sell goods

2)      Parties are merchants

3)      Signed written promise to keep offer open

If the offer is opened beyond 3 months, its length to shortened to

3 months.

Counter-offers with additional terms

Indirect rejection of offer. Conditional accepts are rejections too. If other party accepts, conditional terms become part of K

Modifies existing offer. Conditional accept term does NOT become part of K if accepted.

Other party must NOT insist on term.

***If both parties are merchants,

the additional term is not part of K:

1)      if the term is “material” (changes party’s risk or the remedies available) OR

2)      If the term is objected by original offeror.

*** If seller ships non-conforming goods and notifies buyer as an accommodation, then it’s a counteroffer. If there is not an accommodation, then it’s both an acceptance and a breach for

damages.

Modifying Pre-existing K duties

General rule: doing what you are already legally obligated to do is not new consideration.

Exception:

(1)    addition to or change in performance,

(2)    unanticipated circumstances so severe to excuse performance,

(3)     3rd party promise to pay,

(4)    good faith dispute provides necessary consideration as to amount owed

(5)     If both parties modify their K,

consideration exists where the obligations of both parties are varied

Good faith is the test for changes to an existing sale of goods contract

Statue of Frauds: Writing for Sale of Goods

Common law Need material terms: quantity and price.

Need D’s signature if he wants to assert SoF defense

UCC only need to indicate it’s a sale of goods and quantity.

 

Confirmatory Memos:

One party can use its own signed writing against other party if:

1. Both parties are merchants

2. Writing claims prior agreement has quantity terms

3. NO written objection within 10 days.

NOTE – Letterhead IS considered a signature, so the sig need NOT be “conventional.”

Statue of Frauds: Part Performance

Land:

1)      Payment

2)      Improvements to land

3)      Possession

Service:

1)      Remember service contracts of “not capable of being performed” more than 1 year needs SoF

2)      Full performance satisfy requirements

3)      Part performance does

NOT. Remedies under quasi-contract.

UCC Sales of Goods:

 

Part performance for sale of goods satisfy SoF, but only to the extent of the part performance.

K Provisions Requiring Written Modification

Common law doesn’t need writing and K written modifications provisions are ignored.

Except if you modify beyond the 1

year limit in SoF.

UCC: Written modifications provisions are effective for sale of goods.

Fulfilling and/or Breaches of Performance

Common law: Substantial Performance:

Does not have to be perfect. If performance is substantial, then there is no material breach.

·   Finishing late: Not a material breach unless the contract or circumstances imply time is of the essence.

Divisible Contract:

If payment is to be made on a per unit basis, breaching party can recover the K unit on which he has substantially performed.

UCC: Perfect Tender

If tender is not perfect, buyer may rejects the goods, or accept any unit and reject the rest.

Rejections of goods:

1.      If less than perfect tender, buyer can reject the goods as long as acting in good faith

2.      Buyer must take reasonable care of the goods and cannot use them

Option to cure:

If time to perform has not expired:, Seller has option to cure:

1.      Give reasonable notice to intent to cure AND

2.      Substantially tendering goods

that buyers must accept

 

If time has expired, Seller cannot cure unless:

1.    Buyer has accepted non- conforming goods in the past.

Instalment Contracts:

Perfect Tender rule does NOT apply. Buyer can reject only for substantial impairment of the entire contract or substantial impairment in that instalment.

 

Comments

Post a Comment

Popular posts from this blog

Defamation on the UBE - A Step by Step Guide for the MBE and MEE

-
The tort of defamation can be rather confusing on the UBE, not just in terms of its elements and/or the applicable defenses, but more so because the MBE and MEE questions on defamation can be rather confusing.  In fact, defamation ranks as one of the top two most difficult areas of tort law along with Products Liability!   This blog post has been written to try and clean up some of the confusion associated with this tort.  For starters, let us begin with the three elements of defamation:   1 – W e need a defamatory stmnt made by the defendant that specifically identifies the plaintiff; 2 – We need a publication of that stmnt and;                    3 – Resulting d amage .   BAR EXAM NOTE – If the plaintiff is a PRIVATE PERSON? They must prove that the statement was made with NEGLIGENCE .  Conversely, if the plaintiff is a PUBLIC FIGURE ?   They m...
Read more

Per Capita vs. Per Stirpes - Making Sense of the Difference for the MEE on the UBE

-
Image
One of the more common areas of confusion within the subject of Wills is the distinction between the two methods of intestacy distribution known as Per Capita and Per Stirpes.  This blog post was created to shed some light on how best to approach these distribution methods when tackling a common Wills MEE issue on the examination.     I. Intestate Prop erty Definition This includes assets held in the decedent’s name alone that do not pass by operation of law or by a will.  It should be noted that operation of law means that a non-probate assets that passes automatically because of the way the property title is held, REGARDLESS of the existence of a will. Keep in mind that the residuary (aka the rest left over) is calculated after claims, taxes, and other particular.   II. The Application of the Intest acy Rules Intestacy Rules Apply when 1) the decedent left NO WILL OR DID NOT properly execute a will, OR 2) the will DOES NOT provide for a proper distribu...
Read more

Adding Parties & Claims in Fed Civ Pro - Interpleader, Impleader, Joinder and Intervention

-
Understanding the Differences Between Impleader, Interpleader, Joinder and Intervention Federal Civil Procedure on the UBE contains a major section that pertains to adding parties and/or claims to an already existing suit.  There are four subsections relevant to this area of law known as impleader, interpleader, intervention and joinder.   It is imperative to know the distinctions between each of these subsections. At the outset, it would behoove you to create a chart or graph to capture the distinctions between these four legal mechanisms.  Understanding the nuanced differences between these mechanisms, memorizing necessary vs. permissive joinder, and understanding the difference between intervention as a right and permissive intervention is paramount for success on MBE questions pertaining to this area of the law.  Moreover, while not as common on an MEE essay as personal jurisdiction, subject matter jurisdiction or venue, we can easily see an issu...
Read more