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Related Flashcards
Cards In This Set
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Milau Associates, Inc. v. North Avenue
Development Corp Does Article 2 apply?
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No,
the
service aspect of the transaction predominates the transaction. Here the plaintiffs made a contract for
labor, not goods. The defendants only
had a duty of care that a reasonably prudent and skilled qualified person would
exercise under the same circumstances.
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Analysts Intern Corp. v. Recycled Paper Products
Is computer program a good or service? |
Good, when someone is hired to create a custom
product, they are still creating a good to sell, not performing a service. the knowledge of the programmers is important,
but only so far as it enables him to
produce the software according to the contract
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Anthony Pools v. Sheehan Does Article 2 apply? What is an alternative to the predominate test
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Article 2 applies. Court used the Gravamen test
gravamen test – allows court to escape the predominate
purpose test. If the problem is with the
stuff, art. 2 applies. If problem is
with the labor, common law applies. Here the goods were defective
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Siemen v. Alden Can the non-merchant seller of the saw be held liable under fit for a particular purpose warranty?
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No, although it wasn't necessary for the seller to be a merchant, the buyer did not rely on seller's representation of the saw's fitness when he bought it.
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Statute of Frauds
st1\:*{behavior:url(#ieooui) } St. Ansgar Mills, Inc. v. Streit Was the TC granting of the motion for summary in favor of the buyer based on its findings of unreasonable notice confirming the price and sale of corn proper? |
No, the jury determines whether or not seller gave notice confirming the contract in a reasonable time. The jury will evaluate the course of dealings between the parties.
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Columbia Nitrogen Corp. v. Royster Should the TC have excluded evidence of use of trade under the parole evidence rule?
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No,
Evidence of the course of dealing and use of trade is
admissible, unless the contract says that the course of dealing and use of
trade should not be included in the K. This was not disclaimed in the K.
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Battle of the Forms
Diamond Fruit v. Krack- Krack's purchase order said one thing and Metal's acknowledgment included a disclaimer. Krack's manager asked Metal to change acknowledgment disclaimer. Was Metal’s disclaimer part of the K? Did Krack assent to Metal’s limitation liability term? |
No, b/c Krack’s conduct did not indicate
unequivocally that Krack intended to assent to Metal’s terms, that conduct did
not amount to the assent contemplated by § 2-207(1) which does away with the last shot rule.
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st1\:*{behavior:url(#ieooui) }
Bayway Refining Co.
v. OMT - seller's form included terms re: tax liability and it common in the trade for the buyer to pay the taxes. OMT refuses to pay. Issue: whether, under N.Y. U.C.C. § 2-207(2)(b) a contract term allocating liability to the
buyer for an excise
tax is an additional term presumed to have been accepted (as the seller
contends) or (as the buyer contends) a material alteration presumed to
have been rejected. TC granted Bayway's motion for summary judgment. Is this the correct result?
st1\:*{behavior:url(#ieooui) }
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Yes, – The additional term is included in the K unless the term is a material alteration of the K. The party opposing inclusion of additional term bears burden of proving that term amounts to material alteration. A material alteration is one that would “result in surprise
or hardship if incorporated without express awareness by the other party. OMT must show they were surprised by the addition, which they weren't because it was common in the trade as OMT was in the position to have the taxes waived if it registered.
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Leonard Pevar Co. v. Evans - after a phone discussion which Pevar claims was an oral contract and what Evans claims not, Pevar sent order for ply wood, then Evans sent acknowledgment with disclaimer of most warranties and limiting liability to defective wood. Evans claims his form was a counter offer which Pevar accepted by accepting and receiving the wood. What happens if the jury determines there is no oral K?
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Conduct of the parties may recognize the existence of a contract, despite the previous failure to agree orally or in writing, here there is K, but the jury must determine whether or not an oral K existed. If it finds it didn't the provision of the K will be where the forms agree and the rest of the terms will be gap fillers.
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Klocek v. Gateway K buys computer.
The box includes terms and conditions that include an arbitration cl.
and state “by keeping this computer more than 5 days, you accept the terms and
conditions.” Is the arbitration cl. part of the agreement b/c K kept it more than 5 days?
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No, Klocek is not a merchant --> additional terms are proposals for addition to the K that do not become part of the parties' K unless there is an express agreement. The act of keeping the computer 5 days was not sufficient to demonstrate that plaintiff expressly agreed to the Standard Terms
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st1\:*{behavior:url(#ieooui) }
Moore v. Pro Team Corvette Sales, Inc
st1\:*{behavior:url(#ieooui) }
Moore goes to OH to buy a car from a dealership. The K says “as is” and “all warranties pursuant
to UCC 2-312. Was that an effective disclaimer?
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No, Negative terminology wasn’t sufficient to
disclaim the warranty of title
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st1\:*{behavior:url(#ieooui) }
Shaffer v. Victoria Station, Inc. Shaffer ordered a class of wine at the
restaurant and the glass shatters in his hand. Can Shaffer sue for breach of the implied warranty of merchantability?
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Yes, packaging is part of the good. the fact that the restaurant was not negligent
is not a defense, b/c it isn’t an element of liability under the UCC implied
warranty
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Ferragamo v. MBTA- MBTA sells toxic car to Ferragamo and his brother dies. Breach of warranty of merchantability? Was MBTA a merchant of good of that type? Was "as is" disclaimer effective against brother?
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The MBTA designed, modified and sells it
cars. They are merchant. Even if the “as is” disclaimer was effective,
it won’t prevent the brother, an employee of the buyer, who wasn’t a party of the K from bringing a claim. Lack of privity doesn't prevent brother from making a K claim. The MBTA is liable.
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Back v. The Wikes Corp college students die after accident in motor home. Despite the lack of evidence of abusive use, the TC told the jury that that if a product were used in an “extraordinary or unusual
manner” there would be no warranty liability for any injury resulting from such
“unusual or abusive or different use.” Was this instruction proper?
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No,
such an instruction fails to
inform the jury as to whether the defendant has warranted the goods to be free
from the propensity that caused the plaintiff's injuries. Warranty
liability is not absolute liability, and manufacturer of motor vehicle is not
obliged to make product collision-proof, nor is motor vehicle manufacturer
obliged to design against bizarre, unforeseeable accidents; however,
manufacturer must anticipate environment in which its product will be used, and
must design against reasonably foreseeable risks attending product's use in
that setting. The question on remand for the jury was whether the motor home
was “fit for the ordinary purposes for which such goods are used.”
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Daniell v. Ford Motor Co. P sues Ford after being locked in her trunk for 9 days (a failed suicide attempt). Is Ford liable for implied warranties?
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No, 2-314 use of trunk was extraordinary, 2-315 she
didn’t search out the car for a particular purpose to be able to escape it. The ordinary purpose of the trunk was for carrying goods and she didn’t think about how to exit the trunk when she bought it.
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