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An introduction to the fundamentals of dynamic business law and business ethics chap014

Chapter 14
Formation and Performance of
Sales and Lease Contracts


Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.

Chapter 14 Ethical Dilemma
As this chapter indicates, the Uniform Commercial Code (UCC) holds a
merchant to a higher standard of behavior than non-merchants. UCC
Section 2-104(1) defines a merchant as “a person who deals in goods
of the kind, or otherwise by his occupation, holds himself out as having
knowledge or skill peculiar to the practices or goods involved in the
transaction, or to whom such knowledge or skill may be attributed by
his employment of an agent or broker or other intermediary who, by his
occupation, holds himself out as having such knowledge or skill.”
From an ethical perspective, why should merchants be held to a higher
standard of behavior than non-merchants? Do you support this “great
expectation” of merchants, or do you believe that merchant status

should be irrelevant in terms of expected standards of behavior in a
sale of goods transaction?

Chapter 14 Case Hypothetical and Ethical Dilemma
While traveling on Interstate 10 in the vast, arid land between Phoenix and Los Angeles,
a traveler’s “worst nightmare” occurs. Transmission failure forces tourist Penn Lay to the
emergency lane of the highway, and at that time Lay realizes the true value of a cell
phone. Lay calls a Phoenix towing company, and his car is transported to S. Li Ping
Transmission Repair, Inc.
The repair bill amounts to $4,500. On the bill, transmission parts total $4,000, and labor
hours total $1,000 (5 hours at $200 per hour.) Lay believes that the principles of
capitalism do not extend to such an exorbitant sum, and he further believes that S. Li
Ping interpreted his out-of-state, North Carolina license plate as a “license to steal.”
Who wins? In litigation between the parties, does the Uniform Commercial Code (UCC)
apply, or ordinary contract law (“common” law?) If ordinary contract law applies, should
North Carolina or Arizona law apply? Does S. Li Ping have a legal and/or ethical
obligation to charge “out-of-staters” the same repair price as “in-staters?”


The Uniform Commercial Code
A uniform/model law that governs
commercial transactions, including
contracts for the sale of goods, leases,
and secured transactions


UCC Outline (Articles and Topics)
• Article 1: General Provisions

Article 5: Letters of Credit

• Article 2: Sales

Article 6: Bulk Transfers

• Article 2(A): Leases

Article 7: Documents of Title

• Article 3: Negotiable

Article 8: Investment

• Article 4: Bank Deposits and

Article 9: Secured

• Article 4(A): Wire Transfers

UCC Article 2
Applies to contracts for the sale of


UCC Article 2 Terminology
• Sale: The passing of title from seller to buyer for a price
• Goods: Tangible things that can be moved (Examples:
Automobiles, furniture, electronics)
• Mixed goods and services contracts: Contracts that include
both goods and services. UCC Article 2 applies to contract if
goods are “predominant part” of transaction
• Merchants: Buyers or sellers who
-Deal in goods of the kind involved in contract
-By occupation, represent themselves as having knowledge
and skill unique to goods involved in transaction, or
-Employ a merchant as a broker, agent, or other

UCC Article 2(A)
Applies to contracts for the lease
of goods


UCC Article 2(A) Terminology
• Lease: Transfer of right to possession and
use of goods for a term, in return for
• Lessor: Person who transfers right to
possession and use of goods under lease
• Lessee: Person who acquires right to
possession and use of goods under lease

How Sales and Lease Contracts Are Formed
Under The UCC
• Formation in General: UCC more lenient than common
law regarding contract formation; courts evaluate intent of
parties to sales or lease contract
• Offer and Acceptance
-Offers valid even if terms left open
-“Mirror-image” rule does not apply
-Courts evaluate each case individually to determine
whether additional terms allowed
• Consideration: Mutual consideration required upon
forming agreement. When sales/lease contracts modified,
modifications need not be supported by additional

The UCC and Open Terms
Term Left Open, and Interpretation Under UCC

Price: “Reasonable Price” at time of delivery

Payment: When buyer receives goods

Delivery: Seller’s place of business

Time for Performance: “Reasonable” time

Duration of Contract: “Reasonable” period of time, with termination
allowed in good faith, and upon notice

Quantity: Contract fails for lack of definiteness

UCC Statute of Frauds
General Rule: Contracts for sale of goods
must be in writing if goods valued at $500
or more; lease contracts that require
payments of $1,000 or more must also be
in writing


Definition: In context of UCC contract
for sale of goods or lease, an
agreement that is so unfair or “onesided” that court refuses to enforce it


Contracts for the International Sale of
Goods (CISG)
• Definition: Treaty governing international “businessto-business” sales contracts
• Many major trading nations have signed the CIS
• Significance of CISG: Important because CISG
(rather than UCC) governs international sales
• Advantage of CISG: Provides clarity, predictability,
and uniformity for global businesses

Title, Risk of Loss, and
Insurable Interest


Categories of Title
• Good Title: Acquired from someone who
already owns the goods “free and clear”
• Void Title: Not true title
-Example: Purchase of stolen goods
• Voidable Title: Occurs in certain situations
in which contract between original parties
would be void, but goods have already
been sold to third party

UCC Article 2 Rules Regarding Title
• Good Title: Acquired from someone who has rightful
• Void Title: Results when someone acquires
possession of stolen goods
• Voidable Title results when:
-Buyer deceived seller regarding his/her identity
-Buyer wrote bad check
-Buyer committed criminal fraud in securing goods
-Buyer and seller agreed title would not transfer
until later time
-Buyer is a minor

Acquiring Good Title
General Rule: If “third party
purchaser” makes “good-faith”
purchase for value, he/she gets good
title (not void/voidable title)


Acquiring Good Title
General Rule: If owner entrusts
possession of goods to merchant who
deals in goods of that kind, merchant
can transfer all rights in the goods to a
buyer in the “ordinary course of


UCC Terminology Regarding Transfer of Title
• “Ownership”—Transfer of Title
• “Encumbrance”—Goods used as collateral
for debt
• “Loss”—Refers to which party has “risk of
loss” when goods damaged/destroyed
• “Insurable Interest”—Right to insure goods
against any risk exposure

Types of Sales Contracts
“Simple Delivery” (Definition): Buyer and
seller contract, buyer leaves with goods
• Title transfers to buyer when contract
• Risk of loss transfers to buyer when
buyer takes possession
• Buyer has insurable interest upon
receiving title

Types of Sales Contracts
“Common Carrier Delivery” (Definition): Buyer and
seller contract, seller then places goods with common
• “Shipment” Contract: Title transfers to buyer at
time and place of shipment; buyer bears risk of
loss while goods in transit
• “Destination” Contract: Seller bears risk of loss
until seller delivers goods to stipulated


Shipping Terms Specifying Requirements For Delivery
(Term and Explanation)
• FOB (“Free on Board”): Selling price includes
transportation costs, and seller has risk of loss to either
place of shipment, or place of destination
• FAS (“Free Alongside”): Seller, at seller’s expense,
delivers goods alongside ship before risk transferred to
• CIF or CF (“Cost, Insurance, and Freight”; “Cost and
Freight”): Seller places goods in possession of carrier
before risk passes to buyer
• Delivery “Ex-Ship” (Delivery From Carrying Vessel): Risk
of loss passes to buyer when goods leave ship

Types of Sales Contracts
“Goods-In-Bailment” (Definition): Identifies
goods in storage
• Rules regarding passage of title, risk of
loss, and insurable interest vary,
depending on whether seller has
negotiable title


Types of Sales Contracts
“Conditional Sales”
• “Sale-On-Approval”: Title and risk of loss
with seller until buyer notifies seller of
• “Sale-Or-Return”: Buyer has insurable
interest once goods identified in contract;
title and risk of loss transfer depend on
whether goods in bailment, delivered by
common carrier, or delivered by seller

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