Restatement v. UCC

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
Mickey Quicknumbers
Posts: 2177
Joined: Tue Apr 28, 2009 1:22 pm

Restatement v. UCC

Postby Mickey Quicknumbers » Mon Sep 13, 2010 3:59 pm

My contracts textbook lists the Restatement and the UCC relevant to every case we study. since they seem to be on the surface just synonymous i'm trying to figure out which ones I should copy down into my notes, then into my outlines, then memorize them for the exam. What exactly is the distinction between these two?

User avatar
Grizz
Posts: 10583
Joined: Mon Jan 04, 2010 6:31 pm

Re: Restatement v. UCC

Postby Grizz » Mon Sep 13, 2010 4:42 pm

For one, the UCC applies to the sale of goods (ie only to movable objects exchanged for currency), whereas the restatement applies to contracts more generally. But it can get muddled where principles from the UCC become persuasive authority in cases not explicitly governed by the UCC. Honestly, I'd ask your professor. He could be heavily restatement/UCC, or he could be common law focused except where the common law diverges from the UCC.

User avatar
Grizz
Posts: 10583
Joined: Mon Jan 04, 2010 6:31 pm

Re: Restatement v. UCC

Postby Grizz » Mon Sep 13, 2010 4:51 pm

Also the UCC has been adopted by I think every jurisdiction whereas the Restatement isn't binding until some court cites it.

edit: All jurisdiction has adopted the first 2 articles of the UCC IIRC. Not every jurisdiction has adopted the whole thing.
Last edited by Grizz on Mon Sep 13, 2010 5:35 pm, edited 1 time in total.

User avatar
traehekat
Posts: 3195
Joined: Thu Apr 30, 2009 4:00 pm

Re: Restatement v. UCC

Postby traehekat » Mon Sep 13, 2010 4:57 pm

They way it has been introduced to us is whenever you are dealing with a question involving a contract or agreement, you should first consider whether or not it is governed by Article 2. If it isn't, then you go to the Restatement and the examine elements pointing towards offer, power of acceptance, acceptance, etc. If it is, then you look to the U.C.C. and the more general requirement of just an agreement.

User avatar
onthecusp
Posts: 218
Joined: Thu Sep 10, 2009 4:08 pm

Re: Restatement v. UCC

Postby onthecusp » Wed Sep 15, 2010 9:58 pm

The UCC doesn't begin to part with the Restatement until 2-204. And even then, it only applies when dealing with goods. From what I've understood so far, in four weeks of law school, is that the UCC fixes contracts that are less formal where under the common law the contract would be broken. (adding additional terms after agreeing to contract in principle that specifically requires assent from the other party. 2-207 deals with what happens to those additional terms in the event that both parties perform as if a contract exists where the additional terms were not assented to. 2-204 provides certain gap filling provisions for additional terms not explicitly requiring assent.

Somebody please correct me if I'm wrong.

User avatar
TTH
Posts: 10380
Joined: Mon May 04, 2009 1:14 am

Re: Restatement v. UCC

Postby TTH » Wed Sep 15, 2010 10:19 pm

We've barely scratched the surface of the UCC. We've talked about it in passing once or twice. I hope I'm not completely behind and somehow missing shit in class. :oops:

solidsnake
Posts: 531
Joined: Fri Apr 25, 2008 2:08 am

Re: Restatement v. UCC

Postby solidsnake » Wed Sep 15, 2010 10:26 pm

All of US law is statutory and only when the governing legislature is silent on something, do we turn to common law (which is controlling law in and of itself because of reception statutes, which "absorbed" the entire state of the common law into that state at the time the reception statute was passed -- making it constitutional). Law school 1L pedagogy is all about getting you to think like a lawyer, which seems to mean more like thinking like a judge rather than a legislator, so K hypos and what not tend to focus on areas that are not codified; but you should always start with the presumption that statutes are the bricks, and common law is the mortar that fills in the gaps. Not the other way around.

User avatar
Grizz
Posts: 10583
Joined: Mon Jan 04, 2010 6:31 pm

Re: Restatement v. UCC

Postby Grizz » Wed Sep 15, 2010 10:54 pm

solidsnake wrote:All of US law is statutory and only when the governing legislature is silent on something, do we turn to common law (which is controlling law in and of itself because of reception statutes, which "absorbed" the entire state of the common law into that state at the time the reception statute was passed -- making it constitutional). Law school 1L pedagogy is all about getting you to think like a lawyer, which seems to mean more like thinking like a judge rather than a legislator, so K hypos and what not tend to focus on areas that are not codified; but you should always start with the presumption that statutes are the bricks, and common law is the mortar that fills in the gaps. Not the other way around.


Very true, but yeah, doesn't help if your teacher is pretty big on the common law.

User avatar
onthecusp
Posts: 218
Joined: Thu Sep 10, 2009 4:08 pm

Re: Restatement v. UCC

Postby onthecusp » Thu Sep 16, 2010 2:33 am

rad law wrote:
solidsnake wrote:All of US law is statutory and only when the governing legislature is silent on something, do we turn to common law (which is controlling law in and of itself because of reception statutes, which "absorbed" the entire state of the common law into that state at the time the reception statute was passed -- making it constitutional). Law school 1L pedagogy is all about getting you to think like a lawyer, which seems to mean more like thinking like a judge rather than a legislator, so K hypos and what not tend to focus on areas that are not codified; but you should always start with the presumption that statutes are the bricks, and common law is the mortar that fills in the gaps. Not the other way around.


Very true, but yeah, doesn't help if your teacher is pretty big on the common law.


Also, correct me if I'm wrong, but I remember reading somewhere this week that in contracts, the commons law applies unless usurped by the UCC.

????

Now I'm confused.

User avatar
Grizz
Posts: 10583
Joined: Mon Jan 04, 2010 6:31 pm

Re: Restatement v. UCC

Postby Grizz » Thu Sep 16, 2010 3:02 am

onthecusp wrote:
rad law wrote:
solidsnake wrote:All of US law is statutory and only when the governing legislature is silent on something, do we turn to common law (which is controlling law in and of itself because of reception statutes, which "absorbed" the entire state of the common law into that state at the time the reception statute was passed -- making it constitutional). Law school 1L pedagogy is all about getting you to think like a lawyer, which seems to mean more like thinking like a judge rather than a legislator, so K hypos and what not tend to focus on areas that are not codified; but you should always start with the presumption that statutes are the bricks, and common law is the mortar that fills in the gaps. Not the other way around.


Very true, but yeah, doesn't help if your teacher is pretty big on the common law.


Also, correct me if I'm wrong, but I remember reading somewhere this week that in contracts, the commons law applies unless usurped by the UCC.

????

Now I'm confused.


Here's how I see it. We have statutes that re adopted by states which supersede the common law. The UCC is one of these statutes. However, we don't learn a ton about state-specific statutes besides the UCC.

Common law covers basically everything else that statutes are silent on. The Restatement is not binding precedent, but courts often cite it, because it is persuasive and accurately sums up what the common law is.

270910
Posts: 2437
Joined: Thu May 21, 2009 9:51 pm

Re: Restatement v. UCC

Postby 270910 » Thu Sep 16, 2010 7:52 am

The UCC is a fake statute written by a fancy bunch of smarty pants lawyers. The restatement is a summary of fake law written by a fancy bunch of smarty pants lawyers.

The UCC has been adopted, frequently with significant departures from the model, by many individual states. In that respect when you learn "the UCC" you still aren't REALLY learning the law of the state, because each state often adopts its own version of the language, picks and chooses parts to adopt, and has courts that will come to differing conclusions on precisely how the statute should operate.

The restatement is theoretically just a summary of what the law is in most states. Note that lawyers love to be dicks though, and sometimes they will restate the law as they think it should be and not as it is. It's not binding or even particularly persuasive authority when making legal arguments, but it's a great starting point for research or understanding what the law is in a certain area. But whatever the restatement says, it has to actually be fleshed out by case law in a jurisdiction for usage in legal arguments.

Now, that's the UCC/RSC in the real world. In your contracts class, you may well treat both like Gospel if that's the way the professor presents the material, because law school classes are about learning how to work with rules and not about learning a precise set of rules from a particular jurisdiction. So you may find yourself thinking, interpreting, and applying the UCC and the restatement of contracts as though they were 1) quite similar to one another and 2) enacted statutes. That extra layer of being divorced from reality is an extra perk of law school you get for no extra charge!




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: adub5, Bing [Bot], Google Adsense [Bot], jerrycallo and 9 guests