Post on 15-Dec-2015
11
George Mason School of Law
Contracts II
Conditions
This file may be downloaded only by registered students in my class, and may not be shared by them
© F.H. Buckley
fbuckley@gmu.edu
Next Day
Warranties PLUS Cure
2
3
Kinds of Terms
Consider: I promise to help you on your journey, the good Lord willin’ and the crick don’t rise.
3
I’m going to drown
4
Kinds of terms
Consider: I promise to help you on your journey provided the crick don’t rise. If the crick rises, am I in breach?
4
5
Kinds of terms
Now consider: I promise to help you on your journey provided the crick don’t rise. So this is not a promise: let’s call it a non-
promissory condition If the event in question occurs, I am excused
from performance
5
6
Kinds of terms
Now consider: I promise the crick won’t rise. If the crick rises, am I in breach?
6
7
Kinds of conditions
Now consider: I promise the crick won’t rise. Is there a problem about promising the
occurrence of an event over which I have no control?
7
8
Kinds of conditions
Now consider: I promise the crick won’t rise. Is there a problem about promising the
occurrence of an event over which I have no control? Ever hear of earthquake insurance?
8
9
Different kinds of terms
Some are obligations, some not
9
Promises
Other terms: definitions,
recitals, non-promissory
conditions, etc.
Express non-promissory conditions: force majeur clauses
A party is not liable for failure to perform the party's obligations if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service.
10
11
When will a court to imply a condition, absent express language?
What kind of gap-filling will the court do?
11
12
When will a court to imply a condition, absent express language?
Paradine v. Jane at 77
12Prince Rupert
13
How willing is a court to imply a condition, in the absence of express language?
Paradine v. Jane at 77 “If a lessee covenant to repair a house,
though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it.”
13
14
How willing is a court to imply a condition, in the absence of express language?
Paradine v. Jane at 77 “If a lessee covenant to repair a house,
though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it.”
But “If a house be destoyed by tempest, or by enemies, the lessee is excused” (?!?)
14
15
How willing is a court to imply a condition, in the absence of express language?
Paradine v. Jane at 77 “If a lessee covenant to repair a house,
though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it.”
But “If a house be destoyed by tempest, or by enemies, the lessee is excused” (?!?)
Does it matter that the leasehold interest had passed?
15
16
Stees p.74
What are the possible legal outcomes here?
16
Third and Minnesota, St Paul
17
Stees
What are the possible legal outcomes here? Builder assumes risk and is liable Owner assumes risk and is liable No one is liable
17
18
Stees
What are the possible legal outcomes here? Builder assumes risk and is liable in
damages for non-completion
18
19
Stees
What are the possible legal outcomes here? Builder assumes risk and is liable in
damages for non-completion If this seems hard, what might the builder do?
19
20
Stees
What are the possible legal outcomes here? Owner assumes risk
And is liable for seller’s damages
20
21
Stees
What are the possible legal outcomes here? Owner assumes risk
Cf. Restatement § 89 (Modification), Illustration 1: By a written contract A agrees to excavate a cellar for B for a stated price. Solid rock is unexpectedly encountered and A so notifies B. A and B then orally agree that A will remove the rock at a unit price which is reasonable but nine times that used in computing the original price, and A completes the job. B is bound to pay the increased amount.
21
22
Stees
What are the possible legal outcomes here? No one is liable
The quicksand puts an end to the contract
22
23
Stees
What are the possible legal outcomes here?
Can you tell which from the language of the contract?
23
24
Stees
What doctrines might a court invoke to put an end to all obligations under the contracts?
24
25
Stees
What doctrines might a court invoke to put an end to all obligations under the contracts? Mistake Frustration/Impracticability Condition
25
26
Stees
Mistake Restatement § 152(1) Where a mistake of both
parties at the time of contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake ….
26
27
Stees
Mistake No mistake if Assumption of risk Restatement § 154 A party bears the risk of mistake when
the risk is allocated to him by agreement of the parties, or he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.
27
28
Stees
Frustration or Impracticability Restatement § 261 Where, after a contract is
made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.
28
29
Stees
(Non-promissory) Condition Restatement § 224 A condition is an event, not
certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.
29
30
Stees
(Non-promissory) Condition Restatement § 224 A condition is an event, not
certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.
Restatement § 225(3) Non-occurrence of a condition is not a breach by a party unless he is under a duty that the condition occur
30
31
Stees
What did the court decide?
31
32
Stees
What did the court decide? The contractor must perform his
engagement, unless prevented by the act of God, the law, or the other party
A presumption against non-promissory conditions that excuse performance
32
33
Stees
What did the court decide? He must perform his engagement, unless
prevented by the act of God, the law, or the other party
If the parties had bargained for an excuse, the courts would honor this. What if we thought we knew how they would have bargained had they put their minds to it?
33
34
Stees
What did the court decide? He must perform his engagement, unless
prevent by the act of God, the law, or the other party
If the parties had bargained for an excuse, the courts would honor this. What if we thought we knew how they would have bargained had they put their minds to it?
And just how do you think they would have bargained?
34
35
Stees
What did the court decide? Quicksand as an informational problem
Who was in the best position to discover or know of the problem?
35
36
Stees
What if one party is contractually bound to perform according to specifications that are defective? U.S. v. Spearin at 78
36
37
Stees
If contractors are liable for breach of promise, what remedies might be available to plaintiff homeowners?
37
38
Stees
If contractors are liable for breach of promise, what remedies might be available to plaintiff-homeowners? Damages for breach (give plaintiff the
benefit of the bargain less the contract price)
38
39
Stees
If contractors are liable for breach of promise, what remedies might be available to plaintiff-homeowners? Damages for breach (give plaintiff the
benefit of the bargain less the contract price)
Set aside (rescind) the contract (absolve plaintiff from paying the price)
39
40
Stees
Set aside the contract (absolve plaintiff from paying the price)
Confusingly, this remedy is available when the promise in question is a condition
40
41
Now it gets confusing
So the term condition can mean two entirely different things That wasn’t very smart, was it?
41
Two kinds of conditions
Non-promissory conditions are not promises and excuse performance by either party on their occurrence
42
Two kinds of conditions
Promissory Conditions are promises (for which the innocent
party may receive consequential damages on breach)
and conditions (which excuse performance by the innocent party)
43
44
Different kinds of conditions
Some are obligations, some not
44
Promissory Conditions
Non-promissory Conditions
Promissory conditions:The example at 615
I agree to sell you my dog for $400, delivery at your house on Thursday.
I come to your house with my dog on Thursday. You tell me you want it but that you can’t pay me till Saturday
Do I have to deliver the dog on Thursday?
45
Promissory conditions
UCC § 2-511(1). Unless otherwise agreed, tender of payment is a condition to the seller's duty to tender and complete any delivery.
46
Promissory conditions
UCC § 2-511(1). Unless otherwise agreed, tender of payment is a condition to the seller's duty to tender and complete any delivery.
This is a promissory condition (i.e., you are in breach if you don’t pay)
47
Promissory conditionsTurn this around
I agree to buy your dog for $400 at your house on Thursday.
I come to your house with $400 on Thursday, but you tell me you won’t give me the dog till Saturday
Do I have to pay you on Thursday?
48
Promissory conditions
UCC § 2-507(1). Tender of delivery is a condition to the buyer's duty to accept the goods
49
What does “condition” mean here?
Not every promise is a promissory condition, but only those promises which must be performed as a condition of the other party’s duty of performance Tender or delivery and payment as
mutual conditions Both parties to stand “ready, willing and
able” to perform
50
Promissory and non-promissory conditions
In what respect do promissory and non-promissory conditions resemble each other?
51
Promissory and non-promissory conditions
In what respect do promissory and non-promissory conditions resemble each other? The non-breaching party is excused from
performance of a promissory condition, and both parties are excused on the occurrence of a non-promissory condition
52
Promissory and non-promissory conditions
In what respect do promissory and non-promissory conditions NOT resemble each other?
53
Promissory and non-promissory conditions
In what respect do promissory and non-promissory conditions NOT resemble each other? The breaching party is liable for damages
on breach of a promissory condition, but not on the occurrence of a non-promissory condition
54
55
What about non-sale of goods
When does a promise amount to a promissory condition?
55
56
What about non-sale of goods
§ 234(1). Order of Performances--Where all or part of the performances to be exchanged under an exchange of promises can be rendered simultaneously, they are to that extent due simultaneously, unless the language or the circumstances indicate the contrary.
56
57
What about non-sale of goods
§ 234(1). Order of Performances Where all or part of the performances to be exchanged under an exchange of promises can be rendered simultaneously, they are to that extent due simultaneously, unless the language or the circumstances indicate the contrary.
I.e., a presumption of conditions
57
58
What about non-sale of goods
§ 234(2) Except to the extent stated in Subsection (1), where the performance of only one party under such an exchange requires a period of time, his performance is due at an earlier time than that of the other party, unless the language or the circumstances indicate the contrary.
58
59
What about non-sale of goods
§ 234(2) Except to the extent stated in Subsection (1), where the performance of only one party under such an exchange requires a period of time, his performance is due at an earlier time than that of the other party, unless the language or the circumstances indicate the contrary. So he has to do everything before the
other party has to perform
59
60
What about non-sale of goods
§ 234(2) Except to the extent stated in Subsection (1), where the performance of only one party under such an exchange requires a period of time, his performance is due at an earlier time than that of the other party, unless the language or the circumstances indicate the contrary.
“Work before pay”
60
61
Promissory conditions
When I agree to build you a house, when do you have to pay?
61
62
Work before Pay Stewart v. Newbury at 619
What did the contract say about progress payments?
62
63
Work before Pay Stewart v. Newbury at 619
What did the contract say about progress payments? The presumption: If you want progress
payments, you have to bargain for them
63
64
The duty to be ready, willing and ableBell v. Elder at 616
64
65
Bell v. Elder
What were the obligations of the parties as to performance?
Seller to provide the water, power and roads
Buyer to pay a hook-up fee and apply for a building permit
65
66
Bell v. Elder
66
Elders land Bell
The remedy sought: Purchaser Bell sues to recover deposit because Elders failed to supply water
67
Bell v. Elder
Was the buyer acting opportunistically?
67
68
Bell v. Elder
Here there was no order as to when each party should do their work and “work before pay” applied to both parties
Presumption of simultaneous performances
68
69
Divisibility
Can a party in breach of a promissory condition resist forfeiture by asserting that conditions are divisible?
69
70
Divisibility
Suppose that a builder contracts to build seven motels in seven different cities. Separate payment and completion
schedule for each motel. Builder defaults on last motel. Could buyer rescind on all?
70
71
Divisibility
Restatement § 240. If the performances to be exchanged under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents, a party’s performance of his part of such a pair has the same effect on the other’s duties to render performance of the agreed equivalent as it would have if only that pair of performances had been promised.
71
72
Divisibility
Restatement § 240. If the performances to be exchanged under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents, a party’s performance of his part of such a pair has the same effect on the other’s duties to render performance of the agreed equivalent as it would have if only that pair of performances had been promised.
72
73
Divisibility
Same case, but now: All motels built to the same
specifications Builder to be paid $7M for the seven
motels.
73
74
Divisibility
Same case, but now: All motels built to the same
specifications Builder to be paid $7M for the seven
motels
Restatement § 240, illustration 5
74
75
John. v. United Advertising 620
Are highway signs different?
75 Englewood CO
76
John v. United Advertsing
Are highway signs different? Is this like losing your GPS signal at a
crucial point? “Take the first available U-Turn”
76
77
John v. United Advertsing
What are the options for the court?
77
78
John v. United Advertsing
What are the options for the court? Set aside the entire contract Set aside the severable parts of it
78
79
John v. United Advertsing
A “material failure” of the entire contract?
Restatement § 237. Except as stated in § 240, it is a condition of each party’s remaining duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time.
Was it that?
79
80
John v. United Advertsing
A “material failure” of the entire contract?
Materiality defined in Restatement 241: will damages suffice? Is cure possible? Unjust forfeiture?
80
81
John v. United Advertsing
A severable contract Sever the breaches and enforce as to the
rest? Suppose the contract had been for a
lump sum payment?
81
82
Divisibility in the UCC
UCC § 2-307 Delivery in Single Lot or Several Lots. Unless otherwise agreed all goods called for by a contract for sale must be tendered in a single delivery and payment is due only on such tender but where the circumstances give either party the right to make or demand delivery in lots the price if it can be apportioned may be demanded for each lot. A presumption of non-divisibility
82
83
Divisibility in the UCC
UCC § 2-307 Delivery in Single Lot or Several Lots. Unless otherwise agreed all goods called for by a contract for sale must be tendered in a single delivery and payment is due only on such tender but where the circumstances give either party the right to make or demand delivery in lots the price if it can be apportioned may be demanded for each lot. But this might be rebutted if separate
deliveries contemplated
83
84
UCC § 2-612: Installment Contracts
§ 2-612(1) An "installment contract" is one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause "each delivery is a separate contract" or its equivalent
84
85
UCC § 2-612: Installment Contracts
§ 2-612(2) The buyer may reject any installment which is non-conforming if the non-conformity substantially impairs the value of that installment and cannot be cured or if the non-conformity is a defect in the required documents
85
86
UCC § 2-612: Installment Contracts
§ 2-612(3) Whenever non-conformity or default with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole.
86
87
Promises vs. Conditions
87
Promissory Conditions
Non-promissory Conditions
Bare promises
88
Three different kinds of terms
Non-promissory conditions On its occurrence both parties excused
Promissory conditions On its breach, innocent party may
rescind or sue for damages Bare promises
On its breach, innocent party can sue for damages, but not rescind
88
89
Howard at 625
89
90
Howard
What are the farmer’s remedies if he did not comply with clause 5(b)?
90
91
Howard
What are the farmer’s remedies if he did not comply with clause 5(b)?
Could he be sued for failure to comply with it?
91
92
Howard
What are the farmer’s remedies if he did not comply with clause 5(b)?
Could he be sued for failure to comply with it?
So a non-promissory condition
92
93
Howard
And for non-compliance with Clause 5(f)?
93
94
Howard
Qu. Clause 5(f) If this is not met, Can Howard recover? If this is not met, is Howard liable in
damages?
94
95
Howard
What are the options?
95
96
Howard
What are the options? Bare promise: Not a condition precedent, but a
promise that the event will happen, breach of which gives FCIC a damages remedy at best
Promissory condition: A promise that the event will happen plus non-occurrence excuses the other party from performance
Condition precedent: No promise that event will happen, but non-performance excuses both parties
96
97
Howard
What are the options? Held a Bare promise
97
98
What are the presumptions in the Restatement? Restatement § 227(1) In resolving doubts as to
whether an event is made a condition of an obligor's duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee's risk of forfeiture, unless the event is within the obligee's control or the circumstances indicate that he has assumed the risk.
98
99
What are the presumptions in the Restatement? Restatement § 227(1) In resolving doubts as to
whether an event is made a condition of an obligor's duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee's risk of forfeiture, unless the event is within the obligee's control or the circumstances indicate that he has assumed the risk. So a presumption against promissory and
non-promissory conditions
99
100
What are the presumptions in the Restatement? Restatement § 227(2) Unless the contract is of
a type under which only one party generally undertakes duties, when it is doubtful whether (a) a duty is imposed on an obligee that an event occur, or (b) the event is made a condition of the obligor's duty, or (c) the event is made a condition of the obligor's duty and a duty is imposed on the obligee that the event occur, (a) = bare promise by obligee (b) = non-promissory condition (c) = promissory condition by obligee
100
101
What are the presumptions in the Restatement? Restatement § 227(2) Unless the contract is of
a type under which only one party generally undertakes duties, when it is doubtful whether (a) a duty is imposed on an obligee that an event occur, or (b) the event is made a condition of the obligor's duty, or (c) the event is made a condition of the obligor's duty and a duty is imposed on the obligee that the event occur, the first interpretation is preferred if the event is within the obligee's control. I.e., bare promise
101
102
Recall the different kind of terms in Howard
102
Promissory Conditions
Non-promissory Conditions
Bare promises
103
Non-promissory Conditions
Restatement § 224 A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.
103
104
Promissory Conditions
Restatement § 225(3) Non-occurrence of a condition is not a breach by a party unless he is under a duty that the condition occur
104
105
Promises and ConditionsConditions
Conditions Precedent Promissory No liability if non-occurrence Liability if non-
occurrenceRestatement § 224 Restatement § 225(3)
106
Promises and ConditionsPromises
Conditions Bare Promises(Warranties)
107
Promises and ConditionsPromises
Conditions Warranties Election
Forfeiture Damages Damages only
108
Conditions precedent and subsequent
What’s the difference?
108
Defining Conditions
Conditions precedent: The obligations of the parties will not arise if x has occurred.
Conditions subsequent: The obligations of the parties are suspended if x occurs.
109
110
Conditions precedent and subsequent
Conditions precedent Restatement § 224 A condition is an event,
not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.
110
111
Conditions precedent and subsequent
Conditions subsequent Restatement § 230 “the occurrence of an
event is to terminate an obligor’s duty” Cf. Restatement § 224 cmt e
111
112
Conditions precedent and subsequent
Conditions subsequent Restatement § 230 “the occurrence of an
event is to terminate an obligor’s duty” But not under 230(2) if the obligor is in
breach of duties of good faith and fair dealing or no undue hardship to obligor
112
113
What are the presumptions in the Restatement?
Restatement § 227(3) An interpretation is preferred under which an event is a condition of an obligor’s duty is preferred over an interpretation under which the non-occurrence of the event is a ground for discharge of that duty after it becomes a duty to perform That is, a presumption of a condition
precedent over a condition subsequent
113
114
Conditions precedent and subsequent
Gray v. Gardner at 633
114
115
Conditions precedent and subsequent
Gray v. Gardner Parties bargain for a price by providing
that the contract is void if a greater amount of sperm oil arrive than in the same period of the prior year Buyer to pay a premium if a shortage
115
116
Conditions precedent and subsequent
Gray v. Gardner Parties bargain for a price by providing
that the contract is void if a greater amount of sperm oil arrive than in the same period of the prior year If a condition precedent the contract did not
arise, as the plaintiff must show the condition happened
116
117
Conditions precedent and subsequent
Gray v. Gardner Parties bargain for a price by providing
that the contract is void if a greater amount of sperm oil arrive than in the same period of the prior year If a condition subsequent the contract did
arise, and the onus is on the defendant to show the condition happened
117
118
Conditions precedent and subsequent
Gray v. Gardner Parties bargain for a price by providing
that the contract is void if a greater amount of sperm oil arrive than in the same period of the prior year Held a condition subsequent: onus on
defendant
118
119
Drafting CP and CS clauses
Draft the Gray v. Gardner promise as a CP as a CS
119
120
Attorney-approval clauses at 635
I agree “subject to my lawyer’s approval.” Gaglia v. Kirchner
If a buyer has an attorney approval clause, and the attorney wants changes, can the seller back out?
120
121
Modification, Waiver, Estoppel: Clark v. West at 636
121
The dirty little secret of textbook publishing revealed
122
Modification, Waiver, Estoppel
Distinguish Modifications, waiver, estoppel
122
123
Modification, Waiver, Estoppel
Modifications are bilateral agreements to vary obligations under a contract Promises are modified
123
124
Modification, Waiver, Estoppel
Modifications are bilateral agreements to vary obligations under a contract
Waivers are unilateral acts by one party to excuse another’s performance of an obligation Conditions are waived
124
125
Modification, Waiver, Estoppel
Modifications are bilateral agreements to vary obligations under a contract
Waivers are unilateral acts by one party to excuse another’s performance of an obligation
(Promissory) Estoppel bars a promisor from enforcing a right where he knows that a promisee has detrimentally relied on him.
125
126
Agreement Required?
Reliance required?
Modification
Waiver
Estoppel
Modification, Waiver, Estoppel at common law
127
Agreement Required?
Reliance required?
Modification yes no
Waiver
Estoppel
Modification, Waiver, Estoppel at common law
128
Agreement Required?
Reliance required?
Modification yes no
Waiver no no
Estoppel
Modification, Waiver, Estoppel at common law
129
Agreement Required?
Reliance required?
Modification yes no
Waiver no no
Estoppel no yes
Modification, Waiver, Estoppel at common law
130
Clark v. West
What was the promise? Now you know why textbooks are so
long.
130
131
Clark v. West
What was the promise? Now you know why textbooks are so
long.
Facts alleged on 636 Would this be enough for an estoppel? A waiver?
131
132
(1) An agreement modifying a contract within this Article needs no consideration to be binding.(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.(3) The requirements of the statute of frauds section of this Article (Section 2-201) must be satisfied if the contract as modified is within its provisions.(4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.(5) A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.
UCC § 2-209. Modification, Rescission and Waiver
133
Wisconsin Knife Works at 639
What was the contract?
134
Wisconsin Knife Works at 639
What was the contract?
Spade Bits
Metal Crafters
Wisconsin
Black & Decker
Spade bit
Spade bit blank
135
Wisconsin Knife Works
What was the contract? Wisconsin orders 280,000 blanks from
Metal Crafters in Aug-Sept 1981 for delivery in Oct-Nov
New purchase orders in July 1982 Seller not able to deliver until December
1982—13 months late Jan 1983—144,000 blanks produced but
Wisconsin rescinds
135
136
Wisconsin Knife Works
What was the evidence of modification and what are the problems under the UCC?
136
137
2-209(1) An agreement modifying a contract within this Article needs no consideration to be binding.
Posner: Replaced by good faith§ 1-304. Obligation of Good Faith.
Every contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance and enforcement.
The UCC: Consideration is out
138
A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.
What was the problem with UCC 2-209(2)?
139
Was there a signed modification here?
Why would Wisconsin have wanted a “no modification” clause and why are they standard?
What was the problem with UCC 2-209(2)?
140
A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.
Does this refer to the agreement or to the modification?
What does the proviso do?
141
A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.
What does this mean?
What does the proviso do?
142
A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.
UCC 1-201(37): “Signed” includes any symbol executed or adopted with present intention to adopt or execute a writing
What does the proviso do?
143
A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.
I.e., consumer must sign
144
How did Posner decide on modifications?
Posner on modifications
145
How did Posner decide on waiver?
Posner on waiver
146
2-209(4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.
Note how this supplements the bias against forfeiture
How did Posner decide on Waiver?
147
Wisconsin Knife Works
When does something which fails as a modification succeed as a waiver in 2-209(4)? “can operate as a waiver”
147
148
Wisconsin Knife Works
Does something which fails as a modification always succeed as a waiver in 2-209(4)?
148
149
Wisconsin Knife Works
When does something which fails as a modification succeed as a waiver in 2-209(4)? Posner: so as not to render 2-209(2)
otiose, let’s add a reliance requirement to 2-209(4)
149
150
Wisconsin Knife Works
When does something which fails as a modification succeed as a waiver in 2-209(4)? Posner: so as not to render 2-209(2)
otiose, let’s add a reliance requirement to 2-209(4)
But is 2-209(5) then otiose?
150
151
Wisconsin Knife Works
But is 2-209(5) then otiose? 2-209(5) A party who has made a waiver
affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.
151
152
Wisconsin Knife Works
How to reconcile the provisions: If there is a no modification clause, the
waiver doesn’t work without reliance If there isn’t a no modification clause,
then no reliance needed, but under 2-209(5), one who waives can’t retract if the other party relies
152
153
Wisconsin Knife Works
Why does Easterbrook dissent?
153
154
Wisconsin Knife Works
Why does Easterbrook dissent? Waiver has never required reliance
154
155
Wisconsin Knife Works
UCC § 1-107. Waiver or Renunciation of Claim or Right After Breach. Any claim or right arising out of an alleged breach can be discharged in whole or in part without consideration by a written waiver or renunciation signed and delivered by the aggrieved party.
155
156
Wisconsin Knife Works
How to reconcile the provisions Waiver in 2-209(4) might encompass
either past or future performance Estoppel in 2-209(5) refers only to future
(executory) performance
156
157
Wisconsin Knife Works
So how would Easterbrook prevent 2-209(2) from being otiose?
157
158
Wisconsin Knife Works
So how would Easterbrook prevent 2-209(2) from being otiose? A stricter standard of proof as to
intention?
158
159
Agreement Required?
Reliance required?
Modification yes no
Waiver no no
Estoppel no yes
Avoiding forfeiture: Common Law
160
Agreement Required?
Reliance required?
Modification no consideration needed 2-209(1)
Good Faith in § 1-304
But no modification clause enforced 2-209(2)
no
Waiver
Estoppel
Avoiding forfeiture: UCC
161
Agreement Required?
Reliance required?
Modification
Waiver No Yes: Posner
No: Easterbrook
Estoppel
Avoiding forfeiture: UCC
162
Agreement Required?
Reliance required?
Modification
Waiver
Estoppel No Executory only 2-209(5)
Avoiding forfeiture: UCC
163
Why no waiver in Suzuki at 646?
163
164
Why no waiver in Suzuki at 657?
Did Suzuki waive Kummer’s failure to order Suzuki parts?
164
165
Why no waiver in Suzuki at 657?
The onus of proof to satisfy 2-209(4) unequivocal and unambiguous actions
needed for a waiver
165
166
Why no waiver in Suzuki?
Termination clauses and agency costs Wisconsin Fair Dealership Law, 1974
135.03 Cancellation and alteration of dealerships. No grantor, directly or through any officer, agent or employee, may terminate, cancel, fail to renew or substantially change the competitive circumstances of a dealership agreement without good cause. The burden of proving good cause is on the grantor.
166