Contract Law: UCC Gap Fillers

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LSL
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Contract Law: UCC Gap Fillers

Postby LSL » Thu Nov 22, 2012 1:12 am

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Last edited by LSL on Tue Dec 11, 2012 1:22 pm, edited 1 time in total.

ClubberLang
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Re: Contract Law: UCC Gap Fillers

Postby ClubberLang » Thu Nov 22, 2012 1:45 am

1) I think what it means is that if there is no statute (UCC), common law (Restatement) is used. UCC "Gap fillers" mean something different (default terms in a contract, ie place of delivery) if not otherwise specified in the contract. If there is a statute on point then the common law, as defined by the restatement or some sort of local rule is irrelevant.

2) No, but the restatement is the common law. If you're making an outline for each topic you should have UCC approach vs. restatement approach and obviously know where to apply each.

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Bildungsroman
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Re: Contract Law: UCC Gap Fillers

Postby Bildungsroman » Thu Nov 22, 2012 2:49 am

ClubberLang wrote:2) No, but the restatement is the common law.

This is incorrect.

Also, while the restatement may try to match what the common law is, it even fails there sometimes. See, for example, the restatement's approach to the parol evidence rule.

NotMyRealName09
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Re: Contract Law: UCC Gap Fillers

Postby NotMyRealName09 » Thu Nov 22, 2012 3:21 am

Never make the mistake of thinking the restatement is the law anywhere - court opinions are the only law there is aside from statutes. You've heard this - the origins of the government's right to tell you what do to originates from the sovereign states that took power through rebellion from the crown. They inherited their power from the king they overthrew. Their laws begin with the laws of England.

Because of that, each separate state has developed its own common law with roots in the English system. The Restatements are written by a collection of learned individuals summarizing how the United states have interpreted and developed the law they inherited. while the restatement generally encapsules the majority position, it is merely summarizing how different state courts have interpreted the developing common law. See the comments to any restatement and note the sometimes extreme divergence in differing states' laws.

tl/dr - courts can adopt a restatement position or just as easily call it stupid and reject it. There is no singular common law, only the law as interpreted by state courts and federal courts.

Er, having read what you asked, UCC gap fillers are always the common law as stated in court opinions of that jurisdiction, which may or may not adopt Restatement positions.

ClubberLang
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Re: Contract Law: UCC Gap Fillers

Postby ClubberLang » Thu Nov 22, 2012 3:58 am

Bildungsroman wrote:
ClubberLang wrote:2) No, but the restatement is the common law.

This is incorrect.

Also, while the restatement may try to match what the common law is, it even fails there sometimes. See, for example, the restatement's approach to the parol evidence rule.


Obviously the common law of each jurisdiction is going to be a bit different by its nature. Restatements, for lack of a better term, restate the common law. I guess the way I was reading the OP was that he thought the restatement was a type of statutory authority. More properly it would be a bunch of scholar's take on the common law.

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LSL
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Re: Contract Law: UCC Gap Fillers

Postby LSL » Thu Nov 22, 2012 11:44 am

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Last edited by LSL on Tue Dec 11, 2012 1:22 pm, edited 1 time in total.

swimmer11
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Re: Contract Law: UCC Gap Fillers

Postby swimmer11 » Thu Nov 22, 2012 12:24 pm

The Restatements are NOT law. The Restatements only become law once a court in a particular jurisdiction adopts it. That being said, the restatements and the common law are equivalent in my class because that is how my professor does it. Do it the way your professor does it.

The common law applies everywhere except in the sale of goods and ONLY when the UCC has a provision governing it, otherwise the common law will apply even in the sale of goods.

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Maximized
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Re: Contract Law: UCC Gap Fillers

Postby Maximized » Thu Nov 22, 2012 9:54 pm

Remember, the R2d is NOT the law. It is persuasive authority that only becomes law when the courts adopt it (thus making the adopted provision a part of the common law). I think the degree to which you rely on it as a proxy for the common law depends on your professor, whether the jurisdiction of your hypo. or its laws have been a part of your studies, etc.




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