K question: When should I cite the Restatement/UCC? Forum

[NYC2014]

I'm aware that UCC governs goods (tangible, movable objects) and that the Restatement governs everything else, and that the first issue when looking at a problem is to figure out which it is. That said, I'm a bit confused: If it's predominantly a services K, is the UCC completely useless? I mean, if the UCC and Restatement happen to coincide on the issue, should I cite both (and any cases that are appropriate)? And, vice-versa: If it's a sale-of-goods case, should I cite the Restatement even if the UCC explicitly deals with it?

Muchos gracias.

[MrPapagiorgio]

Unless your professor states in the instructions to use the UCC (which mine actually did), the common law covers transactions where the transaction is primarily for services. If it's predominantly for goods, do UCC analysis. However, if the UCC does not cover the situation, use 1-103 and go to the Restatement/common law.

[Guchster]

When the K is for services, you'd be able to analogize from the UCC and make a case (from a policy perspective) about why the common law should follow suit. But the UCC isn't binding in this way.

Use the restatement otherwise.

[bk1]

Depends on your prof so you should ask him/her.

My Ks prof basically said that they each govern their respective stuff but were persuasive authority for the other. And they were essentially binding in his class.

[Guchster]

Also do the same for the common law for goods. UCC runs the place, but for the purposes of points and fleshing out some interesting issues you'd might otherwise miss. State that the UCC is binding. After your analysis is finished on that point, and you have time, bring up the restatement and see if you can work in the critical differences between the two--and why, as a matter of policy--your view should be the binding one and precedent should follow your approach.

[NYC2014]

To elucidate my question, here's a tiny excerpt from my outline:

Offers stay open for a reasonable amount of time (Ever-tite) (UCC 2-309)(RS40).

So if I face a hypo where a painter offers to paint some guy's house but the other guy doesn't accept for a month, my analysis would go:
This is predominantly a services K, so the Restatement applies. Unless expressly stated, an offer stays open for a reasonable amount of time (RS40)(Ever-tite). Here, ...

Should I write UCC 2-309 in there, too?

[Guchster]

To elucidate my question, here's a tiny excerpt from my outline:

Offers stay open for a reasonable amount of time (Ever-tite) (UCC 2-309)(RS40).

So if I face a hypo where a painter offers to paint some guy's house but the other guy doesn't accept for a month, my analysis would go:
This is predominantly a services K, so the Restatement applies. Unless expressly stated, an offer stays open for a reasonable amount of time (RS40)(Ever-tite). Here, ...

Should I write UCC 2-309 in there, too?

Egh. As a matter of personal judgment I wouldn't. Offer and acceptance are complete bullshit under the UCC. The UCC encourages and facilitates transactions and commercial dealings. Both are meant to be construed extremely liberally. The restatement has much more exacting rules for acceptance here.

You could get into really interesting 45/62 issues of unilateral/bilateral acceptance, acceptance by silence, etc. just based off the limited info you provided her alone. I can't see why you'd want to bring the UCC--which super defers to the common law for advice on acceptance (as stated in article I)--for permission. it'd be a poor proportioning use of time and creativity.

I think issues like the battle of the forms, course of performance/usage of trade/course of dealing, mitigation, impossibility--issues that are more complex that have stronger definitions in both the restatement and UCC would present more interesting opportunities to do this.

[joobacca]

from the dozens of K hypos i looked at as a 1l i never had trouble identifying a sale of goods. i wouldn't worry about it. as for the above poster's recommendation that you analogize restatement to ucc and point out differences and other stuff like that, i'm not sure if that's a good use of your time unless the question asks for this type of stuff. spot as many issues as you can, provide analysis/argue both sides/speculate, and move on.

[3|ink]

My professor said he will award more points if you provide authority for your propositions. So do et!