critique my contracts policy practice question!

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Raiden
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critique my contracts policy practice question!

Postby Raiden » Sat Oct 06, 2012 1:29 pm

I know, I should ask my professor instead, but he has a no exam pregunta policy. And since he doesn't have any previous exams on file, I decided to create my own possible contracts policy question and take it under timed conditions (75 mins, 800 words). I also followed the GTM Czar policy attack strategy.

If any seasoned TLS'ers would like to tell me what they think is good/bad, it would be much appreciated (since I really have no idea if this is good, but it feels good). I think this would be good exercise in general for any law student in trying to understand policy questions.

Questions - Should we follow UCC §2-207 (1)?

UCC §2-207:

"A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms."


My Answer:


Although there may be reasons to discard UCC 2-207, it’s economic efficiency and protection for the poor makes this a rule we should keep.
UCC 2-207 recognizes mutual assent without cumbersome, formalistic language. UCC 2-207 creates fewer restrictions when contracting. The rule allows for a contract to occur even when the acceptance contains immaterial varying terms and doesn’t exactly mirror the offer. By allowing for fewer restrictions when contracting, it makes it easier for two parties to create a contract. By having fewer restrictions, more contracts are likely to occur, causing economic and social gain for society in the long run. There is also an increased freedom to contract, since the offeree now has more individual autonomy. She doesn’t have to worry about mirroring the exact language of the offeror. This gives the offree more confidence while contracting.
Opponents of UCC 2-207 may argue that by discarding this rule, the offeror has more security when he knows he is the master of the contracts stipulations. There is more certainty and predictability in the contract, and offer wouldn’t have to spend more resources to see if there are any varying terms he would resist. More over, this could possibly make it take longer for a contract to be formed, and prevent fewer contracts. But the offeror shouldn’t find this as a reason to discard UCC, since if there is more confidence in the offeree, there will be a greater likelihood of the offeree in being interested in forming a contract. Oponents might also contest that since the offeror is the one who initiatives the contract, policy should try to protect the offeror, since the offeror is the one creates the opportunity for the contract to even exist. But a contract is a two way street, and if the offeree is less hesitant in the contract, then there is still inhibitions in the contracts formation.
Opponents may contest that the MPC approach is costly in terms of administration. Individuals would be less encouraged to read the stipulations of the terms, and public policy shouldn’t encourage laxity with contracts. Also, If courts use a more formalistic standard, as with Common Law, then the “acceptance” would actually be seen as a counteroffer. This way, their terms are stipulated by the counter-offer, otherwise in the MPC approach many more disputes would come to litigation as parties would contest their terms (as seen in DTE). This would diverts the court’s resources in other disputes, and cause parties to be stuck in the process of contracting, rather than completing the contract itself. Yet this reasoning may be too rash, since the common law approach may be inherently difficult when there are cases with multiple counter offers between parties; it would become just as difficult for the court to distinguish between which party’s terms triumph.
Keeping the MPC is also a more equitable result. By not having to have the acceptance mirror the offer exactly, less educated individuals (who are likely to be more impoverished) are protected from entering into contracts with terms they didn’t realize (e.g. William-Thomas). MPC 2-207 then prevents the type of unconsciounablity and unequal bargaining power public policy wishes to avoid. Instead, with MPC, the poorer, less knowledgeable party member will be able to accept according to the terms as he sees it. And if there is a dispute between the parties, then the court acts as safety net to prevent unconsciousable contracts.
Opponents could still contest the fairness by questioning why varying terms in regards to the sales of goods should have this flexibility when contracts not involving sales of goods don’t. This lack of uniformity could create more mistakes about what the law is, and creates an unnecessarily distinction between contracts. But sales of goods need this unique approach in regards to varying terms because of the stipulations a sales of goods transaction can take. The detailed nature of the sales of goods makes it more likely for a mistake to occur in the transaction. The allowance of varying terms then allows the contract to proceed without being hindered by human fallibility.
Even though MPC should be maintained, there still are some unresolved paradoxes. MPC 2-207 attempts to maintain mutual assent while forsaking unnecessarily minute details that prevent contraction formation under the objective theory. But this doesn’t solve the question as to whether or not there really is mutual assent. The offeree could very well engage in a contract without realizing it, and then use MPC 2-207 to show mutual assent, even though her words say otherwise. This could put the oferror in a situation where the offree doesn’t contract in the way they expected. So even though it may be easier to contract, their may be many mismatches in the contract.
Although less educated members may be better protected in MPC, in the long run they are at a disadvantage. In the short run, MPC will make it less likely for the disadvantage to be taken advantaged of, but they would also be less likely to escape their situation when they are not given the ability to understand contracts. They may be protected in the sales of goods, but they are less likey to engage in more sophisticated contracts if they are unable to properly understand the terms.

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icecold3000
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Re: critique my contracts policy practice question!

Postby icecold3000 » Sat Oct 06, 2012 11:45 pm

Change MPC to UCC.

It seems the policy of UCC 2-207 isn't so much about protecting the poor. The bulk of UCC 2-207 litigation come from merchants. The better argument would be about how UCC 2-207 conforms to the justified expectations of a fast moving business world where nobody reads the fine print.

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Raiden
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Re: critique my contracts policy practice question!

Postby Raiden » Sun Oct 07, 2012 1:02 am

Ah, good eye, thanks Ice.

Any advice on the structure and organization? Should the analysis be more sophisticated, or is this analysis sufficient?

Also, does anyone have a model policy sample answer (preferably contracts). I have been trying to find one, can't seem to come across any...

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icecold3000
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Re: critique my contracts policy practice question!

Postby icecold3000 » Mon Oct 08, 2012 11:31 pm

Headings may help your organization and structure.

Why are you so worried about a K policy question?

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Jsa725
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Re: critique my contracts policy practice question!

Postby Jsa725 » Mon Oct 08, 2012 11:42 pm

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Last edited by Jsa725 on Wed May 07, 2014 9:20 pm, edited 1 time in total.

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Raiden
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Re: critique my contracts policy practice question!

Postby Raiden » Mon Oct 08, 2012 11:53 pm

Lol, yeah, because I just took the midterm and it was a policy question, thanks for the help tho

Well that was fun to study for...now time to look at the traditional hypos for his final...

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Jsa725
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Re: critique my contracts policy practice question!

Postby Jsa725 » Mon Oct 08, 2012 11:57 pm

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Last edited by Jsa725 on Wed May 07, 2014 9:21 pm, edited 1 time in total.

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Jsa725
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Re: critique my contracts policy practice question!

Postby Jsa725 » Mon Oct 08, 2012 11:59 pm

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