Transactional Elements of Sales Contracts - Module 2 of 8
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Module 2: Transactional Elements of Sales Contracts
Statute of Frauds
Salvador Dali was a famous painter who, in the 1950's,
was commissioned to paint the Statue of Liberty for a television show. When
Dali did not perform as allegedly agreed, the other party sued. Dali argued that the arrangement to paint
constituted a sale of goods under the UCC and was therefore subject to the
Code's requirement that there be a written record for sales of goods. The court
ruled that the arrangement to procure the painting was not a sale of a
"good," so Dali lost.[1]
The Code’s requirement that there be a writing is the
UCC’s version of the Statute of Frauds.
To address what was then perceived to be a widespread
problem with contractual fraud, the English Parliament passed the original Statute
of Frauds in 1677.[2] The statute required certain types of
contracts, including sales of goods, to be in writing in order to be
enforceable. England repealed its
legislation in 1954 as it pertained to sales of goods. But the UCC continues to
enforce this rule. It has been maligned by commentators, as, instead of
preventing fraud, some argue that it actually promotes fraud when parties can claim
the absence of a writing allows them to escape enforcement of an otherwise
valid agreement.[3]
Section 2-201 of the UCC requires that in order to be
enforceable, a contract for the sale of goods $500 or more must be in writing,
signed by the party (or its agent) against whom enforcement is sought.[4] The terms of the writing need not necessarily
be complete or accurate and the writing of the agreement and its signing may
occur at different times.[5] All
that is necessary for the provision to be satisfied is that the writing
indicate the existence of the agreement and the quantity of the goods to be
exchanged. Even the price term can be left out without running afoul of the UCC
Statute of Frauds. So, for example, if the writing states that the buyer agreed
to purchase 100 loaves of bread, that is sufficient. The price can be agreed to
orally or left to a UCC gap filler (which would simply insert a “reasonable”
price).
Note that the contract cannot be enforced beyond the quantity
referenced in the writing if a larger quantity is agreed to orally.[6] For
example, imagine that Acme Corporation orders 10,000 fluorescent bulbs from
Chandler’s Electrical Supply. The
purchase order and matching invoice stipulated a quantity of 10,000 but Acme
claimed it ordered 12,000 and has a phone recording showing that the parties
agreed to 12,000 orally. Because the writing specified a quantity of 10,000,
under the UCC Statute of Frauds, only the sale of 10,000 units can be enforced.
Between merchants, the Code allows a received written
confirmation of an oral order to satisfy the statute of frauds requirement.
After agreeing to an order, which may be oral, emailed, online, etc., the
merchant may send a confirmation of the agreement to the other party. Under the UCC, the party receiving the
agreement has ten days to object to the confirmation. If the receiving party fails to object to the
agreement within ten days, then the parties are bound even without the original
agreement having been in writing. This is assuming that the original agreement
can be proven (such as with an email exchange or recorded phone call). The
confirmation itself must comply with the requirements of the statute of frauds.[7]
The Code specifies exceptions regarding when a party may
provide evidence of an agreement without a writing. For example, if the parties
orally agree to the production of specially manufactured goods not saleable to
others in the ordinary course of business, and the seller has already
substantially commenced production or procurement of the goods in question,
then the agreement will be enforceable.[8]
For
example, Acme Corporation builds replicas of old Ford Mustang sports cars with
modern safety and convenience features. Each vehicle is manufactured according to specifications selected by the
individual purchaser and at a purchase price of $100,000. Jeff orders a model from Acme and Acme welds
together the chassis and frame. After
Acme configures the engine and transmission, Jeff cancels the order and claims
that since nothing was in writing, their agreement is unenforceable. Given that production substantially commenced
on a specially manufactured good and the amount of the agreement exceeds $500, Jeff would arguably be liable under this statute of frauds exception (assuming
that the initial agreement can be proven).
Another exception exists when a party admits in pleadings
or court testimony to the existence of the agreement. Such admission can establish the existence of
the agreement without a writing.The Code also provides that when a party has
paid for goods and accepted the shipment of those goods, then the existence of
the agreement has been shown by performance, even though there is no writing.[9]
Some courts have allowed estoppel (when the other party
reasonably relies on an oral agreement to its detriment) or fraud by the party
asserting that there’s no agreement as exceptions. These may allow a party to prove
an agreement in the absence of a writing where enforcing the writing
requirement would be unjust.[10]
For
example, Acme Corporation imports exotic sports cars and Jeff agrees to buy one
of their very expensive models. Jeff lies about his finances, though he knew he
could not afford to buy the car. He does
not have the funds to pay Acme for the vehicle he ordered and when Acme learns
of Jeff’s fraud, it cancels the order, but bills Jeff for losses it suffered
due to the agreement. Jeff claims there is no writing, but his fraud may
operate to prevent him from denying liability on the agreement.
Parol Evidence Rule
The parol evidence rule governs the admissibility of
evidence at trial. Specifically, it
addresses what extrinsic evidence, if any, can be admitted that
contradicts or varies the terms of a written agreement. The purpose of the rule
is to preserve the integrity of written instruments and encourage the parties
to ensure that written agreements are complete and proper. The rule can be confusing in its
interpretation and application and leaves judges with significant discretion in
determining what evidence can be used to ascertain a contract's terms and
meaning.[11]
If a writing is intended to be a complete and exclusive
expression of the terms of an agreement, then evidence of additional terms,
whether or not they contradict the writing, must be excluded. The parties may include
in an agreement a "merger clause," which expressly provides that the
contract is complete and exclusive. For an agreement that is not a complete and
exclusive writing of all terms, but leaves some terms incomplete, a court may consider
evidence of additional terms that do not contradict the written agreement.[12]
For
example, assume Acme Auto Repair orally agrees to purchase 100 car batteries at
$200 each from Baker Auto Supply. The parties later sign a contract for 100 car
batteries at $175 each. Baker ships 100
car batteries and demands $20,000. Acme
insists that it only owes Baker for 100 car batteries at $175 each. Since the
prices set forth by the agreements contradict each other, the written agreement
controls, and evidence of the first agreement must be excluded.
Courts interpreting Article 2 have added yet another
dimension of complexity to the parol evidence rule. Courts use different
criteria to determine whether a writing is complete and exclusive. One approach
is the "four-corners test" which is an examination solely of the
agreement itself without reference to evidence outside the writing. Another
approach also looks at the agreement in the context in which it was concluded
to determine whether the agreement is complete in itself.[13]
Beyond the common law parol evidence rule, the Code
provides that course of performance, course of dealing or usage of trade may be
used to assist a court in interpretation of an agreement, even one that is
complete and exclusive in its terms and even when the agreement is clear on its
face.[14] For agreements that are not complete, the
Code additionally allows evidence of “consistent additional terms” to explain
or supplement the writing.[15] Fraud and mistake also operate as exceptions
to the parol evidence rule. Evidence otherwise inadmissible under the parol
evidence rule may be admitted by a court in order to prevent fraud or clarify a
mistake.[16]
Battle
of the Forms
One of the most noteworthy provisions of Article 2 is
Section 2-207, which has been dubbed by legal scholars as the "battle of
the forms" provision.[17] In a typical commercial sale, a buyer submits
a purchase order to a seller, who then sends the buyer a confirmation or
invoice. The forms thus exchanged may contain differing terms. It then becomes
difficult to definitively ascertain whether an agreement between the parties
exists and, if so, what the terms are. The “battle of the forms” provision of
Section 2-207 was intended to provide some guidance by stipulating the rules
that govern the resolution of disagreements involving the use of forms.[18]
Under the common law “mirror image”
rule, any change to the terms of an offer operated as rejection of the original
offer and a counteroffer with the new terms. When the parties exchanged varying
forms, the last form operated as a counteroffer that the other party could
accept or reject. This “last-shot” rule, like many of the common law rules the
Code sought to remedy, was not based on commercial realities and did not
promote effective and efficient transactions.[19] Thus,
while the mirror image rule still applies in other contracts, the UCC
dramatically changed the rule for contracts for the sales of goods.
Section 2-207 provides that if a form
constitutes a “definite and seasonable” expression of acceptance of an offer,
then there is a validly enforceable agreement, even though the acceptance or
confirmation provided terms different from those in the original offer.[20] This provision effectively eliminates the
common law mirror image rule and allows the parties to vary the terms of an
agreement in the course of their transactions. However, the Code provides that
an acceptance made conditional on the inclusion of the additional terms is NOT
considered an acceptance.
In order to ascertain the terms of a
contract in the event of variance between the offer and acceptance, the Code
distinguishes between contracts made by merchants and contracts made by
non-merchants. If a contract involves at
least one non-merchant, then the varying acceptance operates as an acceptance on
the terms of the offer. Any additional terms constitute proposals for
additional agreements that are ineffective unless agreed to by the other party.
For example,
assume that Bill, a non-merchant, orders a used car on eBay from Jim’s Chevy
Dealership with an advertised price of $10,000. Jim sends Bill a confirmation
that says “Thank you for your order, which is accepted and processed. Please
note that the car must be removed from our lot by you within 48 hours or your
order will be cancelled.” Since neither the car ad nor the order said anything
about the 48-hour pickup requirement, the acceptance (the confirmation) varied
from the offer (the order). Under Section 2-207, the contract is valid, but the
48-hour pickup requirement does NOT become part of the agreement unless
accepted by Bill.
If both parties are merchants, though,
then the Code provides that the additional terms DO become part of the contract
unless one of three exceptions applies. The first exception is that the offeror
can expressly forbid the alteration of the offer. If the offeror does so, then
any changes are ineffective. A second exception is if the terms of the
acceptance materially alter the terms of the offer, then the altered
terms do not become part of the agreement. Finally, if the other party objects
within a reasonable time of the alterations, those alterations do not become
part of the agreement.[21]
For example, Acme
Auto Repair requests in writing a shipment from Baker Auto Supply to purchase
400 truck tires at $130 each. Baker responds with an acceptance, but the
acceptance states that he can only provide 395 tires, so he crosses out “400”
and inserts “395.” This is probably not a material change. So, the 395 would
become the binding agreement unless Acme’s offer stipulated that the order
could not be altered or unless Acme objects to the change from 400 to 395
within a reasonable time.
Modifications
At common law, modifications to a contract after it had
been executed needed to be supported by additional consideration on both sides.
Otherwise, the modifications, even if agreed to by both sides, were treated as
gratuitous, unenforceable promises.[22] Article 2 allows the parties to modify a
contract without compromising the agreement's enforceability, even if there is
no new consideration. However, to be binding, the Code imposes a good faith
requirement.[23] Good faith means “honesty in fact and the observance
of reasonable commercial standards of fair dealing in the trade.”[24] The modification must have legitimate purpose
and not be the product of pressure by one party on the other, to the extent
that the coerced party has no meaningful choice.[25]
For
example, assume that Joe agrees with Jane, who owns a hardware store, that Joe
will buy 10 snow shovels for $20 each on January 15. On January 14, there is a
big snowstorm and, suddenly, Jane can get twice as much for each shovel. She
tells Joe that she won’t sell the shovels to him for less than $30. Joe,
needing the shovels now, agrees to the new price. This modification will not be
binding because Jane used undue pressure and the modification was not made in
good faith.
On the
other hand, assume that Jane’s supplier ran out of shovels and she could not
get shovels wholesale except by paying an extra $10 per shovel. After
discussion, Joe agrees to pay an extra $5 per shovel so that they can split the
costs of this development. This seems like a good faith modification and will
likely be enforced.
Article 2 also allows use of a "no-oral
modification" clause, which bars enforcement of any subsequent oral
modifications. These clauses were
unenforceable under the common law. If a
merchant and non-merchant are the parties to an agreement, then the
non-merchant must separately sign the no-oral modification clause.[26]
Even where allowed, modifications may need to comply with the Statute of Frauds
if the new agreement is so covered.[27]
For
example, Tom orally agrees to buy a motorcycle from Acme Corporation for
$450. He later talks to a salesperson
and, after acknowledging some confusion regarding model and options, agrees to
adjust the price to $550. Since the sale
of the motorcycle is now in excess of $500, the agreement between Acme and Tom
is within the statute of frauds and must be in writing.
If the modification does not satisfy the Statute of Frauds
requirement, it may still operate as a waiver, in the sense that the
other party, by agreeing to a modification, may waive its objection to the
agreement. While the modification may be excluded by the Statute of Frauds, a
waiver would achieve the same result as the invalid modification.[28]
However, some courts have held that for such a waiver to be effective, the
other party needs to demonstrate reasonable detrimental reliance on the waiver.[29]
In our next module, we’ll look at warranties and other
implied elements of agreements, such as the unenforceability of unconscionable
agreements and special rules that apply to electronic transactions.
[1] In National Historic ShrinesFoundation v. Dali, 4 U.C.C. Rep. 71 (N.Y. Sup. Ct. 1967), the plaintiff sued Salvador Dali to enforce an oral agreement that the artist had allegedly made to appear on a television program, paint a picture of the Statute of Liberty before the cameras, and present the completed painting to the plaintiff at the end of the program "for its charitable purposes." The value of such a painting, according to Dali, would have been $25,000. Dali asserted that the contract, which he denied making, was in any case one for the sale of goods of the value of $500 or more and hence subject to the writing requirement of §2-201. The court disagreed, choosing to view Dali's agreement as one "for rendition of services." https://h2olaw.harvard.edu/collages/2228/export
[2] James J. White and Robert S. Summers, West Hornbook Series, Uniform Commercial Code, 6th Ed. § 3-1 (2010).
[3] Henry D. Gabriel and Linda J. Rusch. The ABCs of the UCC: (Revised) Article 2:Sales. 21. (2004). This text is a good overview of the UCC but treats the proposed 2003 UCC revisions at length, which were abandoned in 2011 because no state chose to adopt them. Those discarded provisions were of course ignored in preparing these materials.
[11] For an extensive analysis for the vexatious issues involving the parol evidence rule and Article 2, see White andSummers, §§ 3-10 to 3-13.
[29] Judge Posner, Wisconsin Knife Worksv. National Metal Crafters 781 F.2d 1280, 42 UCC 830 (7th Cir.1986), cited in White and Summers, § 2-7.