Explanations of answers (revised 12/18/01)

1. d or c [revised]

According to 2-102, Article 2 applies to all transactions in goods, especially sales of goods, as we saw in the sections we’ve studied so far. It is not restricted to transactions between merchants or involving at least one merchant. However, on appeal, one student raised a good point: Magnuson-Moss defines “consumer” as a person who buys for personal, family, or household use (the UCC does not define “consumer” but Article 9 concurs with this definition), so that answer c is a better answer than answer d. Then I should add one more alternative: “e. sales of goods between merchants, or between a merchant seller and a consumer buyer, or between a non-merchant seller and a consumer buyer.”

2. a or f

Arguably answer a is not a warranty, but instead a remedy for a particular breach. However, Prof. Chomsky thinks otherwise, so the other correct answer is f. Answers b, c, and e are affirmations of fact. Answers c and e are also descriptions. Answer d (and maybe answer a as well) are promises.

3. e

All of the above (a-d) involve electronic agents, as defined in UETA § 2(7) and the 2001 amendments to Article 2, because they all involve a computer program or other automated means used to initiate an action or respond to electronic records or performances.

4. j

All of the above (a-i) are “records,” as defined in the 2001 amendments to Article 2. Answers g, h, and i are “information inscribed on a tangible medium.” Answers a, b, c, d, e, and f are “information stored in an electronic or other medium,” “retrievable in perceivable form.”

5. b

Under 2-207(1), a would-be acceptance is prevented from “operating as an acceptance” by being indefinite (not a “definite . . . expression of acceptance”), containing a clause requiring the recipient’s approval of several new terms before effectiveness (“expressly made conditional on assent to the additional . . . terms”), not being sent within a reasonable time after the offer is received (not a “seasonable expression of acceptance”; see 1-204(3)), or diverging significantly as to the dickered terms (Semco’s translation of “definite expression of acceptance). The only one not relevant to 2-207(1) is “materially altering the offer,” because that phrase appears in 2-207(2), which is not relevant to contract formation, only to which additional terms become part of the contract formed under (1).

6. d

Answer a is derived from the quantity requirement in 2-201 cmt. 1. Answers b and c appear in 2-201(1). However, comment 1 explicitly says that not all of the contract terms need appear in the writing, so answer d is the item NOT required for compliance with 2-201(1). [actually, answer d ought to read “one or more writings containing the agreed terms”]

7. h

This question tests out the applicability of 2-205. Thus, answer a is wrong because an offer can be irrevocable under 2-205, without any consideration to form an option contract. Answer b is wrong, because 2-104 cmt. 2 tells us that 2-205 applies to practices merchants, and offeror here (a furniture company) is definitely a practices merchant. Answer c is wrong because 2-205 does not limit the recipient to a particular category of merchants. Answer d is wrong because the Oct. 24^th note did indeed contain an assurance that the offer would be held open (“You can count on . . . .). Answer e is wrong because the note was “signed” by the offeror’s letterhead, per the definition of “signed” in 1-201(39) and cmt. 39. Answer f is wrong because the note certainly was a writing, per 1-201(46). Answer g is wrong because 2-205 applies regardless of whether the offer is from the seller or the buyer. So answer h is correct; you have to eliminate all of the other answers in order to reach this conclusion.

8. a

Answer b is wrong because Buyer matched the dickered terms exactly from the offer, so there was no significant divergence as to the dickered terms, so there was a “definite . . . expression of acceptance.” Answer c is wrong because Buyer responded well within the time period mentioned in the offer, so there also was a “seasonable expression of acceptance.” Answer d is irrelevant to the question of contract formation, because “material alteration” appears in 2-207(2). Answer e is wrong because there is no condition on the face of Buyer’s acceptance document. Thus, answer a is correct–Buyer did indeed accept the offer.

9. a, g

Answer a is possibly correct, because the terms on the back of Buyer’s acceptance might well material alter the offer by causing surprise or hardship (2-207 cmts. 4 and 5) with the 3-year warranty and the repair/replace remedy. Answer b is wrong (applying 2-207(2)(c)) because seller’s 10/24 note is silent on these terms. Answer c is wrong because these parties were both practices merchants (see 2-104 and cmt. 2), so the first sentence of 2-207(2) does not apply here. Answer d is wrong because “significant divergence” is irrelevant to the terms question under 2-207(2); it is instead relevant to contract formation under 2-207(1). Answer e is wrong because Buyer’s terms on the back were not expressly conditional and, besides, that language is irrelevant to the terms question under 2-207(2). Answer f is wrong because the knock-out rule and the first-shot rule are relevant to the inclusion of different terms, but these terms are additional terms. So answer g is correct in the alternative, if answer a turns out to be incorrect.

10. f

Answers a, b, c, and d are wrong because this is not a “battle of forms” in which terms collide or add in between two writings or between a previous oral contract and a confirmation. Answer e is wrong because Buyer’s terms are additional, not different. Answer f is correct; this is a classic 2-206 acceptance by shipment, so the offer’s terms become the contract terms. To apply 2-207(3) here does violence to the very idea of a clean acceptance by performance, because 2-207(3) would lead to the result in answer a, which is wrong. If seller wanted to contest the Buyer’s terms, it should have instead accepted by return promise and used some of the mechanisms in 2-207. Although answer g is technically correct, 2-204 doesn’t help to answer the question about whether Buyer’s terms on the back come into the contract.

11. d or e or f [revised]

Under either scenario, “chairs, model 4523G, upholstered in Teal Motion” is both a description and an affirmation of fact. The piece of fabric glued onto supplier’s catalog could be a sample (Professor Chomsky’s and my favorite answer), a model (Professor Kleinberger’s answer, in addition to a sample), or an affirmation of fact (Professor Rusch’s answer). So answers d, e, and f are all correct. The question excludes the language on the back of the P.O. (the promise of the three-year guarantee, and seller’s repair/replace remedy, which is not a warranty at all).

12. c, f

This question calls for the alternative answers under the split jurisdictions for basis of the bargain. The statement in the catalog is not puffing. Under the comment 3 jurisdictions, the catalog statement does indeed trigger the presumption in favor of buyer, but buyer’s lack of knowledge of the statement (an affirmation of fact or a promise) means that seller can rebut that presumption with proof of buyer’s non-reliance at the time of contract formation, so answer f is correct. Under the reliance jurisdictions, the catalog statement was not relied on by buyer at the time of contract formation, so answer c is correct. None of the other answers are correct.

Instead, the catalog might be an advertisement (the case law hasn’t been concerned about defining what is and what isn’t an advertisement.) Cipollone stated that the presumption of buyer’s reliance is not created unless buyer read, heard, saw, or knew of the ad at the time of purchase. Thus, in the Cipollone jurisdictions, buyer did not rely on the catalog, so answer c is correct. In non-Cipollone jurisdictions, answer f would be the only other possibly correct answer, under comment 3.

13. e

The chair’s sticker statement meets the same fate as the catalog statement in the previous question under the two tests for “part of basis of the bargain.” The treatment of the sticker as a post-sale term does indeed depend on the jurisdiction. However, regardless of those post-sale rules, 2-314(2)(f) includes promises or affirmations of fact on a label as part of the warranty of merchantability; this warranty, of course, does not include any kind of test for basis of the bargain, so they are automatically part of the contract (unless disclaimed, which they are not). So answer e is correct.