Qs re Ks

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Indigo12
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Qs re Ks

Postby Indigo12 » Fri May 15, 2015 8:06 am

Dunno if anyone else has exams still ongoing, but:

1. UCC 202's Parol Evidence Rule: are "method of payment" & "place of payment" terms admissible as consistent additional terms? On the one hand, if they're terms that, if agreed on, would've appeared in the written final expression, then 202 bars them.

On the other, a K can be silent re method/place of payment, in which case 202 would let parol evidence in to "supplement" a missing term.

2. Restitution. Can you always recover security deposits/down payments if you're the -non-breaching- party? There's a crapload about transactions where -the buyer is the breaching party- and UCC 718 deposit/down payment law, but not so much about when the seller is the breaching party.

I would think you'd want restitution to be available so that the breaching seller doesn't go "to hell with this" and be unjustly enriched by the deposit/downpayment.

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BVest
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Re: Qs re Ks

Postby BVest » Fri May 15, 2015 12:02 pm

For question 2, see 2-711

"the buyer ... may in addition to recovering so much of the price as has been paid" cover or recover damages for non-delivery.

Indigo12
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Re: Qs re Ks

Postby Indigo12 » Fri May 15, 2015 6:04 pm

Hmmm well what if the K is for building something (a service) not covered by UCC 711.

If you pay, eg, $100 downpayment and the builder just quits abruptly, can you get your downpayment back? Would it be reduced by his expenditures spent toward "substantial performance"? The nature of a downpayment is such that you would've paid that downpayment whether or not the builder actually finishes performance, but restitution is generally available so that the builder isn't unjustly enriched by just leaving mid-way.

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mephistopheles
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Re: Qs re Ks

Postby mephistopheles » Fri May 15, 2015 7:22 pm

contracts is equity, don't get caught in the minutiae like this

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BVest
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Re: Qs re Ks

Postby BVest » Fri May 15, 2015 8:08 pm

Indigo12 wrote:Hmmm well what if the K is for building something (a service) not covered by UCC 711.

If you pay, eg, $100 downpayment and the builder just quits abruptly, can you get your downpayment back? Would it be reduced by his expenditures spent toward "substantial performance"? The nature of a downpayment is such that you would've paid that downpayment whether or not the builder actually finishes performance, but restitution is generally available so that the builder isn't unjustly enriched by just leaving mid-way.


Probably depends on how much work he did on the K and what payment timing and holdback provisions you include in the K. Build/remodel K's typically contemplate this issue because contractors OFTEN bolt before they finish. The problem is that when they breach, you can never cover for the same amount. No new contractor wants to adopt the problems created by a previous contractor without some payment covering the risk... plus the job itself is smaller and therefore there may be fewer economies of scale.

Indigo12
Posts: 24
Joined: Fri Dec 26, 2014 11:49 am

Re: Qs re Ks

Postby Indigo12 » Fri May 15, 2015 8:52 pm

So would it be true that restitution is generally available so as to not unjustly enrich a contractor who just bolts. But how much he did, etc, goes to expectancy damages and how much is necessary to put the non-breaching party in a place as good as no breach. In which case, if the downpayment wouldn't be recoverable under expectancy because you would've paid the downpayment, breach or no breach?

And does anyone know whether things like "method or place of payment" are consistent additional terms that can come in under UCC 202's parol evidence rule? I know that if price is silent then UCC 305 just sets it to a reasonable market price. But something like "you can pay me in straight cash or we can trade widgets for socks" is allowable parol evidence to supply a missing term where the K is silent, right?

BVest wrote:
Indigo12 wrote:Hmmm well what if the K is for building something (a service) not covered by UCC 711.

If you pay, eg, $100 downpayment and the builder just quits abruptly, can you get your downpayment back? Would it be reduced by his expenditures spent toward "substantial performance"? The nature of a downpayment is such that you would've paid that downpayment whether or not the builder actually finishes performance, but restitution is generally available so that the builder isn't unjustly enriched by just leaving mid-way.


Probably depends on how much work he did on the K and what payment timing and holdback provisions you include in the K. Build/remodel K's typically contemplate this issue because contractors OFTEN bolt before they finish. The problem is that when they breach, you can never cover for the same amount. No new contractor wants to adopt the problems created by a previous contractor without some payment covering the risk... plus the job itself is smaller and therefore there may be fewer economies of scale.

Indigo12
Posts: 24
Joined: Fri Dec 26, 2014 11:49 am

Re: Qs re Ks

Postby Indigo12 » Fri May 15, 2015 9:01 pm

Another Q:

In the following exchange, does the last shot doctrine form a K, or not because of the mirror image rule?

A: How much for 5 apples?
B: $10 each
A: Too much, sorry.
B: OK how about $8 each (doesn't mention quantity, but in light of the previous negotiations, definite enough to form an OFFER)?
A: OK deal, 5 apples at $8 each. (Acceptance as the last shot that doesn't change any preceding terms? Or is this the offer itself?)
B: "Confirmation" of -6- apples at $8 each.




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