Sales - Day Division
Fall, 2014
Professor Monserud
Ext. 7256
1.
Texts:
A.
Required: Whaley and McJohn, Problems and Materials on Commercial Law
(10th ed. Aspen).
B.
Required: Any compilation of commercial statutes that includes the Uniform
Commercial Code and the Convention on Contracts for the International Sale of
Goods (CISG). As to the UCC, we will concentrate on Article 2, but there will be
some coverage of Article 2A (leases of goods), Article 5 (letters of credit), and
very limited coverage of Article 7 (documents of title). Coverage of the CISG will
be very limited. The recommended statutory compilation for this class is entitled
Selected Commercial Statutes for Sales and Contract courses (West) edited by
Chomsky, Kunz et. al. This version is not essential. If you have a different
compilation, check it out with me before buying a new one.
C.
Statutory and case law supplement: I will distribute a supplement in class consisting
chiefly of case law not included in the casebook. Assignments will include reading in this
supplement. These supplemental cases will be cited on the assignments, so you can easily
read them on line, if you prefer.
2.
Supplemental Resources:
I am listing several sources of Sales law not required nor recommended for this course;
rather, these are resources you may consult for a deeper understanding of the law. The
first four would be especially appropriate for supplemental reading during this Sales
course. The others would be appropriate if you do research for a lawyer or want to write a
paper or article on some point of law.
A.
White and Summers, Uniform Commercial Code (West, 5th ed.). This is the most
cited and respected treatise on the UCC. It is available in the library. If you are
planning on taking all of the UCC courses, you might consider buying a copy
though it is quite expensive. There is also a multi-volume Lawyer’s edition that
has more citations to case law. It is also available in the library.
B.
White and Summers, Principles of Sales Law (West, 2009). This paperback edition
is a much-reduced version of the relevant parts of the treatise listed, supra. It is
hard reading, but it is trustworthy in all respects.
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C.
Henning & Lawrence, Understanding Sales and Leases of Goods (2nd ed. Lexis-Nexis).
This was written exclusively as a student text to help students master the law of Sales.
While there is some coverage of Article 2A, the stress is on Article 2. It is probably the
most user-friendly book listed here. The authors are respected scholars.
D.
Bryan Hull, Inside Sales and Leases (Aspen, 2008). This is a book written for students. It
is terse and has lots of little summaries within it. A great advantage of this book is that is
has some helpful coverage of Article 5 (Letters of Credit) and Article 7 (Documents of
Title).
E.
Anderson, Uniform Commercial Code (Lawyers Coop, 3rd ed.). This is a multi-volume
treatise on the UCC that provides reasonably thorough section-by-section coverage. It is a
great case finder. The library has a hard copy current through 2013, and it is available on
Westlaw.
F.
Nordstrom on Sales and Leases of Goods (2d. ed., 2000). This one volume treatise is
generally reliable and often analytical to a degree that other treatises are not.
I.
Restatement 2nd Contracts can be an invaluable aid in understanding rules of contract
formation and other contract-based parts of Article 2.
J.
John H. Dolan, The Law of Letters of Credit (rev. ed.). There is looseleaf version in the
library. This has long been a standard authority on letters of credit. If you do serious
research in this area, you will need to seek out a current print copy or gain access through
Lexis.
3.
Additional Study Aids:
A.
Douglas Whaley — Tapes on Sales, available in the library.
B.
Monserud —Old exams are on the law school the web site.
C.
Like-minded friends can be invaluable for discussing UCC problems.
4.
Course Coverage:
A majority of our time will be devoted to Article 2. You should master the rules and
concepts of Article 2 to the extent covered in the reading assignments or in class. With
respect to non-Article 2 materials, I will be very selective. You should master these
materials to the extent specifically advised in class or on daily outlines. I will try to relate
other parts of the Code to sales of goods.
Caution: You should be aware that revised Articles 2 and 2A were promulgated by
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their sponsoring organizations (the ALI and NCCUSL) in 2000 or thereabouts.
State legislatures without exception rejected (or failed to adopted) these proposed
articles, so the sponsoring organizations dropped them. A revised Article 1 has now
been adopted by a majority of states, including MA. Consequently, if you come
upon any references to pre-revision Article 1, you may disregard them. Any
references to revised Article 2 or revised 2A should be totally disregarded.
On most assignments, I will list one or more Code sections central to that assignment. You
should not deduce from this that no other sections are important. Important sections may be
cited in cases and problems. You should also follow the casebook’s signals on which
sections to read in connection with his text. I will furnish an outline for each class session
and will list pertinent Code sections thereon. You should use my daily outlines for review
and as a checklist of Code sections covered. Please save the outlines until semester’s end.
Many say these outlines have helped for bar preparation. The outlines will be on the
TWEN site for the class until about thirty days after the class ends.
5.
Course objectives: My objectives are to enable reasonably diligent students (1) to gain
a mastery of the terms, concepts and rules of Article 2, and (2) a meaningful exposure to
the terms, concepts and rules in the other articles listed. The course should be a meaningful
stage in preparation for the Contracts part of the multi-state bar examination and should
assist in preparation for writing bar examination essays. The course should also enable a
reasonably diligent student to engage confidently in law office tasks and discussions
involving the cited statutes. To a lesser extent, the course should also give students an
enhanced sense of empowerment as consumer buyers. This course in not a substitute for a
commercial bar course, but it can work in tandem with, and should lay a foundation for,
such a course of study. Caveat: As to leases of goods (Article 2A), letters of credit (Article
5) and Documents of Title (Article 7), the coverage in this course is introductory only,
mainly to illustrate the role of these articles in connection with sales of goods. However,
this course definitely should point you in the direction you need to go for bar preparation
and entry level practice in these areas. Articles 5 and 7 are sometimes tested in MA and
elsewhere. Think carefully about course choices with your long-term goals in mind.
6.
Class Sessions:
A.
Format: The normal class will consist of four parts: (1) questions to students based upon
the assigned reading; (2) my comments on the law, usually with references to the Code,
(3) questions from students, and (4) problem solving. My questions and comments will
have little meaning if you do not study the assigned cases and related statutory materials
before class. I will cold call and expect reasonable participation\, but I will try not to
humiliate anybody. You must prepare for classes and review from time to time in order to
be successful. Please honor NESL’s policies on food and drink in the classroom and be
courteous to others: turn off the cell phones in class please.
B.
Attendance: Class attendance is expected in accordance with NESL policies which are
tailored to ABA requirements. You will sign in for each class session. As per NESL
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policies, you may miss no more than 20% of classes for any reason, sickness included.
Therefore, if you miss more than five sessions, I am compelled by the rule to report the
absences to the Dean’ office. More than five absences may result in an incomplete or a bar
to taking the examinations. You should consult the student rules. I am not empowered to
approve any excuses. You need to speak with Jacqui Pilgrim at ex.7401 if circumstances
beyond your control push you into a difficult situation.
C.
Timeliness: Try not to arrive in class after the starting time. But, given transportation issues
in Boston, it is possible to make a good faith attempt to be timely and to arrive late. Please
don’t skip if you are late; just be courteous.
D.
QUESTIONS: Questions in class are welcomed. If time requires that I cut off any person,
please phone afterwards at x7256 or better yet send an E-Mail to gmonserud@.nesl.edu. I
will be very happy to communicate about the subject matter of this course at any reasonable
time one-to-one or with a group.
7.
Exams & Grades:
A.
Quiz: there will be a 25 point essay quiz on October 16 2014 It will count for 25% of
your grade. It will be short essays on the topics covered through October 7, 2014. You will
solve simple problems. The quiz will be closed book & closed Code. It is generally true
that reviewing daily outlines is a good review method. You will be allowed 70 minutes.
C.
Final examination: 75 % of your grade will be based upon the final examination which will
consist of problem-solving essays and possibly multiple choice questions. I will advise in
November about the format for the examination Though the whole course will be subject to
examination on the final exam, there will be stress on matters not covered on the quiz. The
final examination will be Open Code. You will be allowed to use your Selected
Commercial Statutes, which you may annotate and tab, but you will not be allowed to use
your notes or casebooks or any other materials. You may not staple or tape any additions to
your statutes. You may bring calculators for the final examination if you want because some
problems will require computations of damages.
D.
You will be more fully advised about the final examination near the end of the course. You
will be allowed 3.5 hours.
E.
For exceptional contributions to the discussions in class, I will occasionally boost a grade
.25 points, e.g. B- to B as allowed by school policies.
Note: If you may qualify for special accommodation on quizzes and/or
examination, please contact Jacqui Pilgrim at extension 7401.
8.
Office Hours: In order to accommodate persons registered for this class, I will make
myself available as needed from 1:00 to 3:00 on Tuesdays and Thursdays. If those hours don’t work
for you, and you want to meet with me, I can make special arrangements on any week day,
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including Friday, or if pressed, on Saturday, at a time mutually convenient. Please make an
appointment directly with me before you stop at my office. Make appointments by calling me
directly at ex 7256 or by sending an e-mail to gmonserud@nesl.edu. I prefer e-mails.
9.
Assignments: Assignments for the semester are set out on the following pages.
Adjustments will be made, if necessary, as the semester progresses I will presume that
everyone can find cited cases on-line when something outside of the casebook is listed.
However, the non-casebook citations are also in the supplement.
10.
Pace: Do not fall behind. You need not brief every case (at least in the traditional sense),
but you must keep up with the reading and problems. Good preparation will require notes or
summations by pen or computer in some fashion. Look ahead at the assignments as some
weeks require substantially more reading than others. For general informational purposes, I
have listed the main topic or topics along with each reading assignment. Caveat: I cannot
realistically cover every nuance in the assigned readings in class; therefore, while I count
class time as important, your time with the books is the core of the course. Learning the
subject matter of the Code, especially Article 2, is very hard but important, and will
require constant and systematic study and serious review.
READING ASSIGNMENTS
Session 1 - August 26:
Topic: The scope of Article 2. Whaley & McJohn (W & M) 3–24. UCC:
Read lightly UCC. 1-103(b) and 2-101 thru 2-107 & 2-304; read carefully 2-102 & 2-105(1) and
the comments. Hereafter, assume that you should read the official comments to cited sections.
Session 2 - August 28: Topics: The meaning of “merchant” and the scope of Article 2A; also the
scope of the CISG. W & M 25- 33. See UCC 2-104(1), 2A-102, 2A -103(1)(h)(j)(k)(l)(n)(p)(q), and
CISG Articles 1-6; also Ferragamo v. M.B.T.A., 481 N.E. 2d 477 (Mass. 1985). See the supplement
for this and other cited cases not included in the casebook.
Session 3 - September 2: Topics: The Article 2 Statute of Frauds & its exceptions. W & M 35 45. See UCC 2-201, 1-108 & read lightly 2A-201 and CISG Art. 11; review also 1-103(b).
Session 4 - September 4: Topics: The Article 2 Parol Evidence Rule & its exceptions & an
introduction to Code modifications of the common law rules of contract formation. W & M 45 - 52.
See UCC 2-202, 1-303; and 2-203 thru 2-206. Read lightly 2A-202 - 206. Time permitting, I will
comment upon the Nanakuli case cited at p. 46 of the casebook.
Session 5 - September 9: Topic: Article 2's rules on the Battle of the Forms. W & M 52 - 67. See
UCC 2-207 and comments. This is hard stuff. Many persons will have lingering questions even
though this material gets some coverage in Contracts classes. Press hard to gain a reasonable
mastery of the cases which illustrate the application of 2-207 and save yourself grief later.
Session 6 - September 11: Topic: Battle of the forms cont. W & M 67 -83. Read & brief
Commerce & Insurance Company v. Bayer Corporation, 433 Mass. 388 (2001) in your supplement.
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Session 7 - September 16: Topics: The warranty of good title, good faith purchasers, and
entrustment. W & M 85-95. See UCC 2-312 & 2-714 & 2-403. Cross reference 9-610(d), warranties
on Article 9 sales of collateral. Note that 2-403 pertains to certain bailments.
Session 8 - September 18: Topics: Express warranties of quality & an introduction to the
implied warranty of merchantability. W & M 95 - 107. Read also Back v. Wickes Corporation, 378
N.E.2d 964 (Mass. 1978). See UCC 2-313 & 2-314.
Session 9 - September 23: Topics: The implied warranty of merchantability & the implied
warranty of fitness for a particular purpose under Article 2; an introduction to disclaimers. W & M
107 - 121. See UCC 2-314 & 2-315 & 2-316; also an introduction to MA 2-318.
Session 10 - September 25: Topics: Implied warranties cont. & disclaimers and also
limitations on remedies. W & M 129 - 143. See 2-316, MA 2-316A and 2-719.
Session 11 - September 30: Topics: Disclaimers again & more defenses, including lack of
timely notice. W & M 144 - 157. Read also Castro v. The Stanley Works, 864 F.2d 961 (1st Cir.
1989). See MA 2-318 and 2-607(3)(a).
Session 12 - October 2: Topics: Making out a prima facie case, burden of proof, and privity.
W & M: 157 - 172. Read also Bay State-Spray & Provincetown Steamship, Inc. v. Caterpillar Co.,
533 N.E. 2nd 1350 (Mass. 1989), and Jacobs v. Yamaha Motor Corporation, 649 N.E. 2nd 758
(Mass. 1995). UCC 2-318 and MA 2-318. Comparison: warranty, negligence, and strict liability.
Session 13 - October 7: Topics: Magnuson Moss and liability under MA chapter 93A, unfair
trade practices. W & M 172 - 185. I will point out certain Mag.-Moss sections in class.
Session 14 - October 9: Topics: Leases under Article 2A and finance leases under 2A.
W & M 185 - 193. See UCC 2A-103(1)(g), 2A-407, 2A-209 thru 2A-214. Read also Draleau
v.Center Capital Corporation, 732 N.E.2d 929 (Mass.App. Ct), review denied by the SJC. You
should know the Draleau case well as it can firm up your understanding of a difficult area.
Session 15 - October 16: 25 point essay quiz on materials covered through October 7. You will
be allowed 70 minutes. The quiz is Closed Book and Closed Code. The timing should allow
ample time for review.
Session 16 - October 21: Topics: Gap-fillers, identification to the contract, and the doctrine of
unconscionability. W & M 195 - 205. See UCC 1-303, 1-304; 2-204(3), 2-305, 2-501 & 2-302.
Especially note the comments to section 2-302. Read Waters v. Min Ltd., 412 Mass. 64, 587
N.E.2d 231 (1992).
Session 17 - October 23: Topics: Risk of loss when there is no breach. W & M 205 - 217. UCC
2-509 & 2-319 thru 2-322. Omit Problem 54 at p. 216.
Session 18 - October 28: Topics: Documents of Title (warehouse receipts and bills of lading)
and how these function in connection with sales of goods. W & M 737 - 757. See 7-101, 7-102,
7-104, 7-204, and 7-309.
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Session 19 - October 30: Topics: Letters of credit, including commercial and standby letters. W
& M 783 - 804. UCC 5-102, 5-103(a), 5-104, 5-108, 5-109, and 5-110. I will pick out the
appropriate definitions under 5-102 in class. Letters of credit can be challenging, but follow the
problems, and you will do just fine.
Session 20 - November 4: Topics: Obligations and rights under installment contracts; the perfect
tender rule; rejection and the seller’s right to cure. W & M 219 - 228. See UCC 2-612, 2-601 &
2-602 & 2-105(5)(6); 2-503, 2-504, and 2-508. Read also Moulton Cavity & Mold, Inc. v. Lyn-Flex
Industries, Inc., 396 A.2d 1094 (Me. 1979).
Session 21 - November 6: Topics: Rejection, Cure, and Acceptance. W & M 228 - 241. See UCC
2-602 thru 2-607 & 2-711. This assignment contains material which will require review in
connection with remedies listed in Part 7 of Article 2 as the semester draws to a close. Concentrate
on the requirements for rejection and the remedies that can play in combination with rejection.
Session 22 - November 11: Topics: Revocation of Acceptance and the remedies that can play in
combination with Revocation of Acceptance. W & M 242 - 253. See UCC 2-608 and 2-711.
Session 23 - November 13: Topics: Risk of loss when there is a breach; post-formation excuses
including impossibility, impracticality, and frustration of purpose. W & M 253 - 272. Omit
Problem 67. See UCC 2-510 & 2-613 & 2-615.- 446. Read also Chase Precast Corporation v.
John J. Paonessa Company, Inc., 566 N.E.2nd 603 (Mass. 1991).
Session 24 - November 18: Topics: Liquidated damages; Reclamation, and Restitution. W & M
273 - 275. See UCC 2-507, 2-702, & 2-718(1)(2)(3). Read also Neri v. Retail Marine Corp., 285
N.E.2d 311 (N.Y. 1972) and NPS, LLC v. Minihane, 451 Mass. 417, 866 N.E. 2nd 670 (2008). The
reading assignment in W & M is almost comically short. It would be worthwhile to use any
available time reading commentary about seller’s and buyer’s remedies as the course winds down.
The supplementary cases will be a basis for problems in class.
Session 25 - November 20: Topics: Seller’s remedies including, the action for the price, resale v.
contract/market; lost profits for a lost volume seller; and right to complete unfinished goods. W &
M 275 - 285. See UCC 2-709, 2-706, 2-708(1)(2) & 2-704; and also 1-305(a).
Session 26 - November 25: Topics: Buyer’s remedies, including consequential damages, cover,
and contract/market damages. W & M 285 - 304. See UCC 2-710 thru 2-717, especially 2-711,
2-712 & 2-713. This is hard work. Make yourself work through the problems.
Session 27- December 2: Topics: Anticipatory repudiation & damages; statutes of limitations and
reducing the Article 2 statute of limitations by contract. W & M 305 - 316. Review MA 2-318 with
its special statute of limitations for tort-based warranty cases. See UCC 2-610, 2-611; 2-713, 2-723;
2-725 & MA 2-318. Read also Jandreau v. Sheesley Plumbing & Heating, Inc., 324 N.W.2d 266
(S.D. 1982).
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Session 28 - December 4: Topics: More on the Article 2 statute of limitations; accord &
satisfaction. W & M: 316 - 322. See UCC 2-102, 2-105(1), 2-725; 3-311. Read Ross Brothers
Construction, Inc. v. Markwest Hydrocarbon, 61 UCC Rep. Serv. 2d 102 (6th Cir. 2006). Pointers
for the final exam.
Note: for good cause this syllabus may from time to time be modified by statements in class or on
the web site. If you have any questions, please e-mail me.
Exam date: The final examination is scheduled for December 15, 2014. Please check the date, time,
and room number as the semester winds down. Come a little early so that we can begin exactly on
time.
End of Syllabus
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