Sales Law : Domestic and International

by Gillette, Clayton P.; Walt, Steven D.

• ISBN13: 9781599412658
• ISBN10: 1599412659
• Edition: 2nd
• Format: Paperback
• Copyright: 2008-11-25
• Publisher: West Academic

Summary

Authoritative coverage describes and analyzes the law of sales under Article 2 of the Uniform Commercial Code, as well as under the United Nations Convention on Contracts for the International Sale of Goods. Text provides the framework for sales and governing law, contract formation, implied terms, formal requirements, performance, and risk of loss. Also covers remedies, the rights to goods, and documentary sales.

Author Biography

Clayton P. Gillette, Max E. Greenberg Professor of Contract Law, New York University School of Law Steven D. Walt, Professor of Law and Sullivan Cromwell Research Professor, University of Virginia School of Law, Frank and Ginni Bazler Designated Professor of Law, Ohio State University Mortiz College of Law

Table of Contents

Preface	p. v
Table of Contents	p. ix
Introduction to Sales Law	p. 1
Introduction to the Statutory Development of Commercial Law	p. 1
Article 2 of the UCC	p. 1
The United Nations Convention on Contracts for the International Sale of Goods	p. 5
Principles of Sales Contracts - Herein of Default Rules	p. 10
Commercial Contracts as Discrete and Relational Contracts - Herein of Reputation	p. 15
Reputation and Relational Contracts	p. 15
Reputation Without Repetition	p. 17
Governing Law	p. 21
Scope of Sales Law Under Article 2	p. 21
Choice of Law Under the UCC	p. 21
Transactions within Article 2: Definition of "Goods"	p. 23
Merchants	p. 27
Mixed Sales and Services, Software	p. 30
Leases and Other Transactional Forms	p. 35
The Scope of the CISG	p. 40
Choice of Law under the CISG	p. 40
Types of Transactions Subject to the CISG	p. 49
Exclusions	p. 51
Mixed Sales and Service Contracts	p. 53
Leases	p. 55
The Principle of Issue-Displacement	p. 56
Formation of the Contract	p. 59
Introduction: The Evaluation of Formation Rules	p. 59
Offer and Acceptance	p. 62
Article 2's Approach to Formation Rules	p. 62
Irrevocable Offers Under Article 2	p. 65
The CISG's Formation Rules	p. 69
Opting Out of the CISG's Formation Rules	p. 69
The CISG's Formation Rules Illustrated: Six Hypotheticals	p. 70
Offer-Varying Acceptance: The Battle of the Forms	p. 76
Under Article 2	p. 76
Introduction	p. 76
Problems in [section] 2-207's Interpretation	p. 79
Under the CISG	p. 85
Section 2-207 and Article 19 Evaluated	p. 91
Rolling Contracts and Article 2	p. 93
Modification	p. 98
Under Article 2	p. 98
Under the CISG	p. 105
Implied Terms	p. 113
Trade Usage, Course of Dealing, Course of Performance	p. 113
Under the UCC	p. 113
Under the CISG	p. 120
Open Terms	p. 125
Open Price Terms Under the CISG	p. 129
Open Quantity Terms	p. 134
Evaluating Supplied Terms: Herein of "Best Efforts"	p. 139
Formal Requirements	p. 151
Introduction: Permissive Rules, Mandatory Rules, and Externalities	p. 151
The Statute of Frauds	p. 153
Introduction	p. 153
Justifying the Statute of Frauds	p. 155
Article 2's Statute of Frauds	p. 157
Section 2-201's Statutory Requirements	p. 157
Exceptions to the Statute of Frauds	p. 161
Ethics and the Statute of Frauds	p. 166
The CISG and the Statute of Frauds	p. 168
The Parol Evidence Rule	p. 173
Article 2's Parol Evidence Rule: [section] 2-202 Outlined	p. 173
Excluding Trade Usage	p. 176
Two Standards of Contradiction	p. 176
The Process of Exclusion	p. 179
Warranties and the Parol Evidence Rule	p. 180
The CISG and the Parol Evidence Rule	p. 183
Is the Parol Evidence Rule Displaced?	p. 183
Contracting for the Parol Evidence Rule	p. 188
Unconscionability	p. 189
Under the UCC	p. 189
Section 2-302's Standard of Unconscionability	p. 190
Unconscionability Applied	p. 192
Unconscionability Evaluated	p. 197
The CISG and the Domestic Law of Unconscionability	p. 198
Performance	p. 203
Introduction: Allocating Losses and Monitoring Performance	p. 203
Insecurity and Adequate Assurances of Performance	p. 205
Under the UCC	p. 205
Introduction	p. 205
Demand for Adequate Assurances	p. 207
Reasonable Grounds for Insecurity	p. 208
Adequate Assurances of Performance	p. 210
Suspending Performance Under the CISG	p. 211
Anticipatory Repudiation	p. 214
Under the UCC	p. 214
Under the CISG	p. 218
Tender, Acceptance, Rejection, Cure Under the UCC	p. 219
Tender and Inspection	p. 219
Inspection in Documentary Transactions	p. 222
Acceptance and Rejection	p. 226
Introduction: Neutralizing Strategic Behavior	p. 226
Perfect Tender	p. 228
What Constitutes Acceptance?	p. 231
Burden of Proof Concerning Defects	p. 233
Acts Inconsistent With Seller's Ownership	p. 234
Buyer's Obligations on Rejection	p. 237
Cure	p. 240
Introduction	p. 240
Technical Requirements	p. 241
Curing with a Conforming Tender	p. 243
Cure in the Courts: Repair and Interpretation	p. 245
Revocation of Acceptance	p. 249
Introduction	p. 249
Substantial Impairment "to Him"	p. 255
Post-Revocation Cure	p. 258
Inspection, Avoidance, and Cure under the CISG	p. 260
Inspection and Notice of Defects	p. 260
Cure and Avoidance Under the CISG	p. 264
The Burden of Proving Nonconformity Under the CISG	p. 270
Excuse	p. 274
Introduction	p. 274
Under the UCC	p. 275
Under the CISG	p. 282
Risk of Loss	p. 293
Introduction: Loss Allocation in Transactional Settings	p. 293
Risk of Loss Under the UCC	p. 294
Risk of Loss Where Seller Retains the Goods	p. 295
Risk of Loss Where Goods are Held by a Bailee	p. 296
Risk of Loss During Transit	p. 299
Opting Out of Risk of Loss Provisions	p. 303
Risk of Loss in the Event of Breach	p. 305
Risk of Loss Under the CISG	p. 308
When Does Risk of Loss Pass?	p. 308
Risk of Loss in the Event of Breach	p. 314
Burden of Proof	p. 316
Warranties	p. 317
Introduction: Allocating the Risk of Quality	p. 317
Warranties Under the UCC	p. 320
Express Warranties	p. 320
Who Can Make the Warranty?	p. 320
How is the Warranty Created?	p. 320
Basis of the Bargain	p. 324
Advertising and Warranty	p. 327
Post-Bargain Warranties	p. 330
Implied Warranty of Fitness for a Particular Purpose	p. 331
Who Can Make the Warranty?	p. 331
How is the Warranty Created?	p. 331
Implied Warranty of Merchantability	p. 333
Who Can Make the Warranty?	p. 333
How is the Warranty Created?	p. 335
Disclaiming Warranties	p. 342
Should Warranties be Disclimable?	p. 342
Disclaiming Warranties Under [section] 2-316	p. 344
Who Receives the Benefit of Warranties? Herein of Privity and Personal Injury	p. 347
Federal Law and UCC Warranties of Quality	p. 351
Introduction	p. 351
The Magnusson-Moss Warranty Act	p. 351
Preemption by Federal Law	p. 356
Warranty of Good Title	p. 358
"Warranties" Under the CISG	p. 361
Remedies	p. 369
Introduction: Allocating the Loss of Transactional Breakdown	p. 369
Money Damages	p. 372
Under the UCC	p. 372
Substitute Performance: Resale and Cover Under [section] 2-706(1) and [section] 2-712(1)	p. 372
Market Price Damages	p. 378
Proof Costs	p. 378
Election of Remedies	p. 381
Lost Profits: [section] 2-708(2)	p. 386
Measuring Lost Profits	p. 387
Recovering Lost Profits Under [section] 2-708(2)	p. 389
The Accepting Buyer's "Value Difference"	p. 395
[section] 2-714(2)'s Measure of "Value"	p. 395
The Relation Between [section] 2-714(1) and (2)	p. 395
Measuring Damages for Breach of Warranty of Title	p. 400
Under the CISG	p. 403
Substitute Performance: Article 75	p. 406
Market Price Damages: Article 76	p. 408
Reduction of the Price	p. 410
Article 50's Formula	p. 410
Article 50's Use	p. 412
Why Allow Price Reduction?	p. 413
Interest and its Calculation	p. 415
Specific Relief	p. 418
Under the UCC	p. 418
Seller's Action for the Price	p. 418
[section] 2-709's Technical Requirements	p. 418
[section] 2-709's Justification	p. 420
Specific Performance	p. 422
Under the CISG	p. 428
The Routine Availability of Specific Relief	p. 428
Article 28's Restriction of Specific Relief	p. 429
Contractually Stipulated Remedies	p. 432
Liquidated Damages	p. 432
Remedy Limitations and Damage Exclusions	p. 437
Allocating Risk of Nonconformity	p. 437
The Relation Between Damage Exclusions and Remedy Limitations	p. 440
The CISG: Liquidated Damages, Remedy Limitations, and Damage Exclusions	p. 443
Right to Goods: Bona Fide Purchase and Reclamation	p. 447
Good Faith Purchase Rules	p. 447
The Nemo Dat Principle and Its Exceptions	p. 447
The Reach of "Voluntary Transaction"	p. 453
"Entrustment" and the Passage of Title	p. 454
Seller's Right to Recover and Reclaim Goods	p. 457
Goods-Oriented Remedies Under the CISG	p. 461
Documentary Sales	p. 465
Introduction: Allocating Performance Risks	p. 465
Payment Terms: Letters of Credit and Payment Risks	p. 467
Introduction	p. 467
Formal Requirements	p. 473
Issuer's Duty to Pay: Strict Compliance Standard	p. 475
Issuer's Duty to Pay: Waiver, Estoppel and Preclusion	p. 484
The Issuer's Right Not To Pay: The Independence Principle and the Fraud Exception	p. 492
The Independence Principle	p. 492
The Fraud Exception	p. 493
Two Types of Fraud	p. 494
What is Fraud?	p. 497
The Protected Class of Presenters: [section] 5-109(a)(1)	p. 501
Justification	p. 507
Justifying [section] 5-109(a)(1)'s Protection	p. 507
Justifying the Fraud Exception	p. 511
Table of Cases	p. 517
Index	p. 525
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