Inside Sales and Leases What Matters and Why

by Hull, Bryan D.

• ISBN13: 9780735569966
• ISBN10: 0735569967
• Format: Paperback
• Copyright: 2008-08-27
• Publisher: Aspen Publishing

Summary

With clear writing, hard-working pedagogy, and a wealth of visual aids, this surprisingly concise study guide emphasizes the essential components of the law, illustrating how the pieces fit together-and why.

Table of Contents

Preface	p. xvii
Acknowledgments	p. xix
Introduction	p. 1
Sales and Leases of Goods	p. 1
The Law Applicable to Domestic Sales and Lease Transactions	p. 2
The Law Applicable to International Sales	p. 4
The Structure of This Book	p. 5
Is the Transaction a Sale of Goods Transaction?	p. 9
"Goods" and "Sale" Defined	p. 10
Sales Involving Merchants and Non-Merchants	p. 12
Mixed Goods/Services Contracts and Sales of Businesses	p. 12
The "Predominant Purpose" Approach	p. 12
The "Gravamen" Approach	p. 14
Mixed Goods/Real Estate Transactions	p. 15
Software Transactions and the Use of Article 2 by Analogy	p. 15
International Sales	p. 16
Contract Formation	p. 21
Basic Formational Rules	p. 22
Formal Requirements-Must the Contract Be Evidenced by a Writing?	p. 23
"Offer" and the "Firm Offer Rule"	p. 26
The Acceptance	p. 28
The "Battle of the Forms"	p. 29
The Writings Form a Contract	p. 31
Identify the Offer	p. 31
Identify the Acceptance	p. 31
What Happens to the Additional or Different Terms in the Acceptance?	p. 32
The Parties Informally Contract and Follow with Confirmations	p. 36
The Writings of the Parties Do Not Form a Contract, But a Contract Is Formed by Performance	p. 38
The "Rolling Contract" Approach, or "Money Now, Terms Later"	p. 39
Modifications	p. 41
No Consideration Required	p. 42
Formal Requirements for Modification	p. 42
Differences in CISG Approach to Contract Formation	p. 44
Definition and Revocation of Offers	p. 44
Acceptances Are Generally Effective on Receipt	p. 45
CISG Approach to the "Battle of the Forms"	p. 45
Generally, No Writings Are Required Under the CISG	p. 46
Terms of the Contract-Warranties	p. 51
The Warranty of Title	p. 52
UCC Treatment	p. 52
CISG Treatment	p. 53
Warranties of Quality	p. 54
Express Warranties	p. 54
The Implied Warranty of Merchantability	p. 57
The Implied Warranty of Fitness for a Particular Purpose	p. 60
Warranty Disclaimers	p. 61
Privity Issues	p. 64
The Magnuson-Moss Warranty Act and State Consumer Protection Law	p. 67
Other Contract Terms, Interpretation, and Unconscionability	p. 75
Components of the Agreement	p. 76
Risk of Loss	p. 77
Cases in Which No Shipment Is Involved	p. 77
Cases in Which Goods Are to Be Shipped	p. 80
Risk of Loss-Breach	p. 84
Gap Fillers	p. 85
Open Price Term	p. 86
Output and Requirements Contracts	p. 87
Provisions Dealing with Delivery and Payment	p. 87
Contract Interpretation and the Parol Evidence Rule	p. 89
CISG Rules of Interpretation	p. 89
General Rules of Contract Intepretation and Construction	p. 89
Parol Evidence Rule Analysis Under the UCC	p. 91
Evidence of Prior Written or Oral Agreements and Contemporaneous Oral Agreements that Contradict the Final Written Contract	p. 92
Evidence of Prior Written or Oral Agreements and Contemporaneous Oral Agreements that Are Consistent with the Written Contract	p. 93
Evidence of Course of Performance, Course of Dealing, and Usage of Trade	p. 94
Parol Evidence Rule Exceptions	p. 96
The CISG Approach to Parol Evidence	p. 97
Unconscionability	p. 97
Performance, Breach, and Excuse	p. 105
Prospective Non-Performance: Repudiation and Insecurity	p. 106
Repudiation	p. 106
Insecurity and Demand for Adequate Assurance	p. 107
Repudiation and Insecurity Under the CISG	p. 108
Passage of Title from Seller to Buyer	p. 109
Title and the UCC	p. 109
UCC Rules Regarding Voidable Title and Entrustment	p. 110
Title in Cases Covered by the CISG	p. 111
Performance and Breach Under the UCC	p. 111
Non-Installment Sales	p. 111
Acceptance and Rejection of Goods	p. 112
Revocation of Acceptance	p. 114
Example of Zabriskie Chevrolet	p. 115
Use of Goods After Rejection or Revocation of Acceptance	p. 116
Installment Sales	p. 119
Rejection of Installments	p. 119
Cancellation of the Entire Contract	p. 120
Example of Cherwell-Ralli, Inc. v. Rytman Grain Co., Inc.	p. 121
Seller's Ability to Limit Buyer's Right to Reject or Revoke and to Recover Consequential Damages	p. 122
Limits on Rights to Reject or Revoke	p. 122
Limits on Buyer's Rights to Recover Consequential Damages	p. 124
Performance and Breach Under the CISG	p. 125
The Definition of "Fundamental Breach"	p. 125
The Example of Delchi Carrier SpA v. Rotorex	p. 126
The Foreseeability Requirement for Fundamental Breach	p. 127
The Concept of Nachfrist, or Extension, Notices	p. 127
Excuse from Performance-Impracticability and Frustration of Purpose	p. 129
Impracticability	p. 130
Frustration of Purpose	p. 132
CISG Excuse from Performance on the Basis of "Impediment"	p. 133
Buyer's Remedies	p. 137
Under the UCC	p. 138
Goods Not Accepted	p. 138
Cover	p. 139
Contract/Market Differential-Buyer Does Not Cover	p. 140
Specific Performance, Replevin, and Right to Claim Identified Goods	p. 145
Accepted Goods	p. 147
Notice Requirement	p. 147
Measurement of Damages	p. 147
Availability of Tort Remedies	p. 149
Buyer's Remedies Under the CISG	p. 151
Specific Performance	p. 151
Price Reduction	p. 151
Damages	p. 152
The Statute of Limitations	p. 153
Seller's Remedies	p. 159
Seller's Remedies Under the UCC	p. 160
Goods Not Delivered Due to Buyer's Breach and Goods Wrongfully Rejected	p. 160
Right to Refuse Delivery	p. 160
Seller's Resale Remedy	p. 161
Seller's Contract/Market Formula	p. 162
Lost Profits	p. 165
Action for the Price	p. 167
Goods Delivered	p. 168
Reclamation of Goods	p. 168
Action for Price	p. 169
Liquidated Damages and Breaching Buyer's Right to Restitution	p. 169
Liquidated Damages	p. 169
The Breaching Buyer's Right to Restitution	p. 170
Seller's Remedies Under the CISG	p. 171
Specific Performance	p. 171
Damages	p. 172
Interest on Sums Owed	p. 172
Liquidated Damages	p. 173
Third Parties Involved in the Sales Transaction	p. 177
The Letter of Credit Transaction	p. 178
Bank Obligations Under Letters of Credit	p. 179
Has a Letter of Credit Been Issued?	p. 180
Has the Documentary Presentation Complied with the Terms of the Letter of Credit?	p. 182
The "Strict Compliance" Rule	p. 182
The Statutory Right of Reimbursement and Liability for Wrongful Honor or Dishonor	p. 183
The Independence Principle of Letters of Credit	p. 184
Fraud	p. 184
"Material Fraud" Requirement	p. 184
Protection of Parties that Accept or Pay Drafts Drawn Under Letters of Credit in Good Faith	p. 185
Bank Collection of Documentary Drafts	p. 187
Obligations of Carriers	p. 188
Misdelivery	p. 188
Damage to Goods and Delays in Delivery	p. 191
Obligations of Warehouse Operators	p. 192
Warehouse Receipts	p. 192
To Whom Should the Warehouse Operator Deliver the Goods?	p. 195
Warehouse Operator Liability for Misdescription of Goods on Warehouse Receipt	p. 195
Leases of Goods	p. 199
Governing Law	p. 200
Is the Transaction a Lease or a Sale?	p. 202
The Conditional Sale	p. 202
Factors in Determining Whether a Transaction Is a Lease or Conditional Sale	p. 204
Consequences of Determining that Transaction Is Sale Rather than Lease	p. 205
Is the Lease a "Finance Lease"?	p. 206
Rights of the Lessee in the Goods	p. 209
Performance, Breach, and Remedies Under a Lease Contract	p. 210
Lessee's Right to Reject or Revoke Acceptance	p. 210
Lessor's Right to Cancel, Withhold Delivery, and Repossess	p. 210
Damage Recovery for Injured Lessors and Lessees	p. 211
Actions for Rent and Specific Performance	p. 212
Table of Statutes	p. 217
Index	p. 223
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