§ 2-209. Modification, Rescission and Waiver.
(1) An agreement modifying a contract within this Article needs no
consideration to be binding.
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§ 2-102. Scope; Certain Security and Other Transactions Excluded From
This Article.
Unless the context otherwise requires, this Article applies to transactions in
goods; it does not apply to any transaction which although in the form of an
unconditional contract to sell or present sale is intended to operate only as a
security transaction nor does this Article impair or repeal any statute regulating
sales to consumers, farmers or other specified classes of buyers.
§ 2-105. Definitions: Transferability; “Goods”; “Future” Goods; “Lot”;
“Commercial Unit”.
(1) “Goods” means all things (including specially manufactured goods) which
are movable at the time of identification to the contract for sale other than the
money in which the price is to be paid, investment securities (Article 8) and
things in action. “Goods” also includes the unborn young of animals and
growing crops and other identified things attached to realty as described in the
section on goods to be severed from realty (Section 2-107).
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§ 1-103. Construction of [Uniform Commercial Code] to Promote its
Purposes and Policies; Applicability of Supplemental Principles of Law.
(a) [The Uniform Commercial Code] must be liberally construed and applied to
promote its underlying purposes and policies, which are:
(1) to simplify, clarify, and modernize the law governing commercial
transactions;
(2) to permit the continued expansion of commercial practices through
custom, usage, and agreement of the parties; and
(3) to make uniform the law among the various jurisdictions.
(b) Unless displaced by the particular provisions of [the Uniform Commercial
Code], the principles of law and equity, including the law merchant and the law
relative to capacity to contract, principal and agent, estoppel, fraud,
misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or
invalidating cause supplement its provisions.
§ 2-209. Modification, Rescission and Waiver.
(1) An agreement modifying a contract within this Article needs no
consideration to be binding.
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Official Comment
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2. Subsection (1) provides that an agreement modifying a sales contract needs
no consideration to be binding.
However, modifications made thereunder must meet the test of good faith
imposed by this Act. The effective use of bad faith to escape performance on the
original contract terms is barred, and the extortion of a “modification” without
legitimate commercial reason is ineffective as a violation of the duty of good
faith. Nor can a mere technical consideration support a modification made in
bad faith.
§ 2-306. Output, Requirements and Exclusive Dealings.
(1) A term which measures the quantity by the output of the seller or the
requirements of the buyer means such actual output or requirements as may
occur in good faith, except that no quantity unreasonably disproportionate to any
stated estimate or in the absence of a stated estimate to any normal or otherwise
comparable prior output or requirements may be tendered or demanded.
(2) A lawful agreement by either the seller or the buyer for exclusive dealing in
the kind of goods concerned imposes unless otherwise agreed an obligation by
the seller to use best efforts to supply the goods and by the buyer to use best
efforts to promote their sale.
§ 2-306. Output, Requirements and Exclusive Dealings.
Official Comment
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2. …. Reasonable elasticity in the requirements is expressly envisaged by this
section and good faith variations from prior requirements are permitted even
when the variation may be such as to result in discontinuance. A shut-down by a
requirements buyer for lack of orders might be permissible when a shut-down
merely to curtail losses would not. The essential test is whether the party is
acting in good faith. Similarly, a sudden expansion of the plant by which
requirements are to be measured would not be included within the scope of the
contract as made but normal expansion undertaken in good faith would be
within the scope of this section. One of the factors in an expansion situation
would be whether the market price had risen greatly in a case in which the
requirements contract contained a fixed price.
(I recommend you look at all the official comments to this section.)
§ 2-206. Offer and Acceptance in Formation of Contract.
(1) Unless otherwise unambiguously indicated by the language or circumstances
(a) an offer to make a contract shall be construed as inviting acceptance in
any manner and by any medium reasonable in the circumstances;
(b) an order or other offer to buy goods for prompt or current shipment shall
be construed as inviting acceptance either by a prompt promise to ship or by
the prompt or current shipment of conforming or non-conforming goods,
but such a shipment of non-conforming goods does not constitute an
acceptance if the seller seasonably notifies the buyer that the shipment is
offered only as an accommodation to the buyer.
(2) Where the beginning of a requested performance is a reasonable mode of
acceptance an offeror who is not notified of acceptance within a reasonable time
may treat the offer as having lapsed before acceptance.
§ 1-303. Course of Performance, Course of Dealing, and Usage of Trade.
(a) A “course of performance” is a sequence of conduct between the parties to a
particular transaction that exists if:
(1) the agreement of the parties with respect to the transaction involves
repeated occasions for performance by a party; and
(2) the other party, with knowledge of the nature of the performance and
opportunity for objection to it, accepts the performance or acquiesces in it
without objection.
(b) A “course of dealing” is a sequence of conduct concerning previous
transactions between the parties to a particular transaction that is fairly to be
regarded as establishing a common basis of understanding for interpreting their
expressions and other conduct.
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§ 1-303. Course of Performance, Course of Dealing, and Usage of Trade.
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(c) A “usage of trade” is any practice or method of dealing having such
regularity of observance in a place, vocation, or trade as to justify an expectation
that it will be observed with respect to the transaction in question. The existence
and scope of such a usage must be proved as facts. If it is established that such a
usage is embodied in a trade code or similar record, the interpretation of the
record is a question of law.
§ 1-303. Course of Performance, Course of Dealing, and Usage of Trade.
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(d) A course of performance or course of dealing between the parties or usage of
trade in the vocation or trade in which they are engaged or of which they are or
should be aware is relevant in ascertaining the meaning of the parties'
agreement, may give particular meaning to specific terms of the agreement, and
may supplement or qualify the terms of the agreement. A usage of trade
applicable in the place in which part of the performance under the agreement is
to occur may be so utilized as to that part of the performance.
§ 2-205. Firm Offers
An offer by a merchant to buy or sell goods in a signed writing which by its
terms give assurance that it will be held open is not revocable, for lack of
consideration, during the time stated or if no time is stated for a reasonable time,
but in no event may such period of irrevocability exceed three months; but any
such term of assurance on a form supplied by the offeree must be separately
signed by the offeror.
§ 2-204. Formation in General.
(1) A contract for sale of goods may be made in any manner sufficient to show
agreement, including conduct by both parties which recognizes the existence of
such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even
though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail
for indefiniteness if the parties have intended to make a contract and there is a
reasonably certain basis for giving an appropriate remedy.
§ 2-305. Open Price Term.
(1) The parties if they so intend can conclude a contract for sale even though the
price is not settled. In such a case the price is a reasonable price at the time for
delivery if
(a) nothing is said as to price; or
(b) the price is left to be agreed by the parties and they fail to agree; or
(c) the price is to be fixed in terms of some agreed market or other standard
as set or recorded by a third person or agency and it is not so set or
recorded.
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§ 2-201. Formal Requirements; Statute of Frauds.
(1) Except as otherwise provided in this section a contract for the sale of goods
for the price of $500 or more is not enforceable by way of action or defense
unless there is some writing sufficient to indicate that a contract for sale has
been made between the parties and signed by the party against whom
enforcement is sought or by his authorized agent or broker. A writing is not
insufficient because it omits or incorrectly states a term agreed upon but the
contract is not enforceable under this paragraph beyond the quantity of goods
shown in such writing.
(2) Between merchants if within a reasonable time a writing in confirmation of
the contract and sufficient against the sender is received and the party receiving
it has reason to know its contents, it satisfies the requirements of subsection (1)
against such party unless written notice of objection to its contents is given
within 10 days after it is received.
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§ 2-201. Formal Requirements; Statute of Frauds.
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(3) A contract which does not satisfy the requirements of subsection (1) but
which is valid in other respects is enforceable
(a) if the goods are to be specially manufactured for the buyer and are not
suitable for sale to others in the ordinary course of the seller's business and the
seller, before notice of repudiation is received and under circumstances which
reasonably indicate that the goods are for the buyer, has made either a
substantial beginning of their manufacture or commitments for their
procurement; or
(b) if the party against whom enforcement is sought admits in his pleading,
testimony or otherwise in court that a contract for sale was made, but the
contract is not enforceable under this provision beyond the quantity of goods
admitted; or
(c) with respect to goods for which payment has been made and accepted or
which have been received and accepted (Sec. 2-606).
§ 1-201. General Definitions.
(a) Unless the context otherwise requires, words or phrases defined in this
section, or in the additional definitions contained in other articles of [the
Uniform Commercial Code] that apply to particular articles or parts thereof,
have the meanings stated.
(b) Subject to definitions contained in other articles of [the Uniform Commercial
Code] that apply to particular articles or parts thereof:
….
(31) “Record” means information that is inscribed on a tangible medium or
that is stored in an electronic or other medium and is retrievable in
perceivable form.
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(37) “Signed” includes using any symbol executed or adopted with present
intention to adopt or accept a writing.
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(43) “Writing” includes printing, typewriting, or any other intentional
reduction to tangible form. “Written” has a corresponding meaning.
Uniform Electronic Transactions Act (1999)
§ 7. Legal Recognition of Electronic Records, Electronic Signatures, and
Electronic Contracts.
(a) A record or signature may not be denied legal effect or enforceability solely
because it is in electronic form.
(b) A contract may not be denied legal effect or enforceability solely because an
electronic record was used in its formation.
(c) If a law requires a record to be in writing, an electronic record satisfies the
law.
(d) If a law requires a signature, an electronic signature satisfies the law.
§ 2-302. Unconscionable Contract or Clause.
(1) If the court as a matter of law finds the contract or any clause of the contract
to have been unconscionable at the time it was made the court may refuse to
enforce the contract, or it may enforce the remainder of the contract without the
unconscionable clause, or it may so limit the application of any unconscionable
clause as to avoid any unconscionable result.
(2) When it is claimed or appears to the court that the contract or any clause
thereof may be unconscionable the parties shall be afforded a reasonable
opportunity to present evidence as to its commercial setting, purpose and effect
to aid the court in making the determination.
§ 1-303. Course of Performance, Course of Dealing, and Usage of Trade.
(a) A “course of performance” is a sequence of conduct between the parties to a
particular transaction that exists if:
(1) the agreement of the parties with respect to the transaction involves
repeated occasions for performance by a party; and
(2) the other party, with knowledge of the nature of the performance and
opportunity for objection to it, accepts the performance or acquiesces in it
without objection.
(b) A “course of dealing” is a sequence of conduct concerning previous
transactions between the parties to a particular transaction that is fairly to be
regarded as establishing a common basis of understanding for interpreting their
expressions and other conduct.
(c) A “usage of trade” is any practice or method of dealing having such
regularity of observance in a place, vocation, or trade as to justify an expectation
that it will be observed with respect to the transaction in question. . . .
§ 1-303. Course of Performance, Course of Dealing, and Usage of Trade.
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(e) Except as otherwise provided in subsection (f), the express terms of an
agreement and any applicable course of performance, course of dealing, or
usage of trade must be construed whenever reasonable as consistent with each
other. If such a construction is unreasonable:
(1) express terms prevail over course of performance, course of dealing, and
usage of trade;
(2) course of performance prevails over course of dealing and usage of
trade; and
(3) course of dealing prevails over usage of trade.
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§ 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.
§ 1-201. General Definitions.
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(20) “Good faith,” except as otherwise provided in Article 5, means honesty in
fact and the observance of reasonable commercial standards of fair dealing.