? review foakes v. beer
? Sugarhouse finance
? Flambeau
? R82: Promise to Pay Indebtedness; Effect on the SOL
? 1. A promise to pay all or part of an antecedent contractual or quasi contractual indebtedness owed by the promisor is binding if the indebtedness is still enforceable or would be except for the effect of the SOL
? 2. The following facts operate as such a promise unless other facts indicate a different intention:
? a. a voluntary acknowledgment to the obligee, admitting the present existence of the antecedent indebtedness; OR
? b. a voluntary xfer of money, a negotiable instrument, or other thing by the obligor to the obligee, made as interest on or part payment of or collateral security for the antecedent indebtedness; OR
? c. a statement to the obligee that the SOL will not be pleaded as a defense
? COMMENT a
? REQUIREMENT OF WRITING.
? Promise Not binding unless in writing unless
if in the form of 2b (part payment, neg. instr, etc.)
? Statutes requiring a writing inapplicable when
promise is supported by consideration
promise made enforceable by reliance
? R83: Promise to pay indebtedness discharged in BK
? An express promise to pay all or part of an indebtedness of the promisor, discharged or dischargeable in BK proceedings begun BEFORE the promise is made, is binding
? Bankruptcy Reform Act of 1978, 11 USC ?524 (P. 171)
? R85: Promise to perform a voidable obligation (RATIFICATION)
? Promise to perform voidable obligations (e.g. by fraud, infancy, or within the statute of frauds is enforceable despite absence of new consideration as long as new promise (RATIFICATION) is not subject to the same privilege or defense as the original obligation
? R86: Promise for a Benefit Received
? 1. A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent necessary to prevent injustice
? 2. A promise is not binding under subsection 1:
? a. if the promisee conferred the benefit as a gift or for other reasons the promisor has not been unjustly enriched; OR
? b. to the extent that its value is disproportionate to the benefit
? COMMENT PAGE 185
? Jones
? Webb
? Harrrington
? Mills
? R344: Purposes of Remedies
? Judicial remedies serve to protect one or more of the following interests of a promisee
? a. Expectation Interest
? having the benefit of his bargain by being put in as good a position as he would have been had the K been performed
? b. Reliance Interest
? being reimbursed for loss caused by reliance on the K by being put in as good a position as he would have been had the K NOT been made
? c. Restitution interest
? restored to him any benefit that he has conferred on the other party
? UCC 2-711: Buyer’s Remedies in General.
? (1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
? (a) “cover” and have damages under the next section as to all the goods affected whether or not they have been identified to the contract; or
? (b) recover damages for non-delivery as provided in this Article (Section 2-713).
? (2) Where the seller fails to deliver or repudiates the buyer may also
? (a) if the goods have been identified recover them as provided in this Article (Section 2-502); or
? (b) in a proper case obtain specific performance or replevy the goods as provided in this Article (Section 2-716).
? (3) On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (Section 2-706).
? COMMENT
? 1. The purpose of this section is to index the buyer’s remedies, subsection (1) covering those remedies permitting the recovery of money damages, and subsection (2) covering those which permit reaching the goods themselves. The remedies listed here are those available to a buyer who has not accepted the goods or who has justifiably revoked his acceptance. The remedies available to a buyer with regard to goods finally accepted appear in the section dealing with breach in regard to accepted goods. The buyer’s right to proceed as to all goods when the breach is as to only some of the goods is determined by the section on breach in installment contracts and by the section on partial acceptance.
? UCC 2-712. “Cover”; Buyer’s Procurement of Substitute Goods.
? (1) After a breach within the preceding section the buyer may “cover” by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.
? (2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2-715), but less expenses saved in consequence of the seller’s breach.
? (3) Failure of the buyer to effect cover within this section does not bar him from any other remedy.
? COMMENT
? 1. This section provides the buyer with a remedy aimed at enabling him to obtain the goods he needs thus meeting his essential need. This remedy is the buyer’s equivalent of the seller’s right to resell.
? 2. The definition of “cover” under subsection (1) envisages goods not identical with those involved but commercially usable as reasonable substitutes under the circumstances of the particular case. The test of proper cover is whether at the time and place the buyer acted in good faith and in a reasonable manner, and it is immaterial that hindsight may later prove that the method of cover used was not the cheapest or most effective.
? The requirement that the buyer must cover “without unreasonable delay” is not intended to limit the time necessary for him to look around and decide as to how he may best effect cover.
? 3. Subsection (3) expresses the policy that cover is not a mandatory remedy for the buyer. The buyer is always free to choose between cover and damages for non-delivery under the next section.
? However, this subsection must be read in conjunction with the section which limits the recovery of consequential damages to such as could not have been obviated by cover.
? UCC 2-713. Buyer’s Damages for Non-delivery or Repudiation.
? (1) Subject to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this Article (Section 2-715), but less expenses saved in consequence of the seller’s breach.
? (2) Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.
? COMMENT
? 5. The present section provides a remedy which is completely alternative to cover under the preceding section and applies only when and to the extent that the buyer has not covered.
? UCC 2-715, comment 2
? 2. Subsection (2) operates to allow the buyer, in an appropriate case, any consequential damages which are the result of the seller’s breach. The “tacit agreement” test for the recovery of consequential damages is rejected. Although the older rule at common law which made the seller liable for all consequential damages of which he had “reason to know” in advance is followed, the liberality of that rule is modified by refusing to permit recovery unless the buyer could not reasonably have prevented the loss by cover or otherwise. Subparagraph (2) carries forward the provisions of the prior uniform statutory provision as to consequential damages resulting from breach of warranty, but modifies the rule by requiring first that the buyer attempt to minimize his damages in good faith, either by cover or otherwise.
? UCC 2-716: Buyer’s Right to Specific Performance or Replevin.
? (1) Specific performance may be decreed where the goods are unique or in other proper circumstances.
? (2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
? (3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.
? COMMENT
? 1. The present section continues in general prior policy as to specific performance and injunction against breach. However, without intending to impair in any way the exercise of the court’s sound discretion in the matter, this Article seeks to further a more liberal attitude than some courts have shown in connection with the specific performance of contracts of sale.
? 2. In view of this Article’s emphasis on the commercial feasibility of replacement, a new concept of what are “unique” goods is introduced under this section. Specific performance is no longer limited to goods which are already specific or ascertained at the time of contracting. The test of uniqueness under this section must be made in terms of the total situation which characterizes the contract. Output and requirements contracts involving a particular or peculiarly available source or market present today the typical commercial specific performance situation, as contrasted with contracts for the sale of heirlooms or priceless works of art which were usually involved in the older cases. However, uniqueness is not the sole basis of the remedy under this section for the relief may also be granted “in other proper circumstances” and inability to cover is strong evidence of “other proper circumstances”.
? 3. The legal remedy of replevin is given the buyer in cases in which cover is reasonably unavailable and goods have been identified to the contract. This is in addition to the buyer’s right to recover identified goods on the seller’s insolvency (Section 2-502).
? 4. This section is intended to give the buyer rights to the goods comparable to the seller’s rights to the price.
? UCC 2-703: Seller’s Remedies in General.
? Where the buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole, then with respect to any goods directly affected and, if the breach is of the whole contract (Section 2-612), then also with respect to the whole undelivered balance, the aggrieved seller may
? (a) withhold delivery of such goods;
? (b) stop delivery by any bailee as hereafter provided (Section 2-705);
? (c) proceed under the next section respecting goods still unidentified to the contract;
? (d) resell and recover damages as hereafter provided (Section 2-706);
? (e) recover damages for non-acceptance (Section 2-708) or in a proper case the price (Section 2-709);
? (f) cancel.
? COMMENT
? 1. This section is an index section which gathers together in one convenient place all of the various remedies open to a seller for any breach by the buyer. This Article rejects any doctrine of election of remedy as a fundamental policy and thus the remedies are essentially cumulative in nature and include all of the available remedies for breach. Whether the pursuit of one remedy bars another depends entirely on the facts of the individual case.
? UCC 2-706. Seller’s Resale Including Contract for Resale.
? (1) Under the conditions stated in Section 2-703 on seller’s remedies, the seller may resell the goods concerned or the undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article (Section 2-710), but less expenses saved in consequence of the buyer’s breach.
? (2) Except as otherwise provided in subsection (3) or unless otherwise agreed resale may be at public or private sale including sale by way of one or more contracts to sell or of identification to an existing cont