Bus Law Final Exam Quizlet

Limitation of warranties are very common in contracts for the sale of goods

(i.e. consumer contracts) read the contracts you enter into because in most cases, you will be bound by the limitation of warranties found in the contracts

Age Discrimination in Employment Act

-ADEA forbids discrimination by employers, unions, and employment agencies against persons over 40 years of age. the act sets forth the employment practices that are unlawful, including the failure to hire because of age and the discharge of employers because of age. -enforcement of the ADEA is the responsibility of the EEOC. procedures and time limitations for filing and processing ADEA charges are the same as those under title vii

warranty against infringements

-applies only to merchants, merchants are deemed to warrant goods are free from any patent, trademark or copyright claims of a third person (2-312,3) -unless otherwise agree, every merchant seller warrants that the goods will be delivered free of the rightful claim of any third person by way of patent, copyright, or trademark infringement

implied warranties of merchantability

-applies only to merchants; a seller who deals in goods of the kind in question is classifies as a merchant by the UCC and is held to a higher degree of responsibility for the product that one who is merely make a casual sale

Article 2 of the Uniform Commercial Code (UCC)

-applies to the sale of "goods" -governs the sale of everything from boats to electronic devices -this area of the law is fairly "uniform" which results in commerce being more efficient -it achieves efficiency by making the laws governing the purchase and sale of goods clearer and simpler

For passage of title, the goods must be identified in a way that will distinguish them from all other goods of the seller

-identification: not a problem -until the seller separates (or identifies in a specific manner) title and risk of loss remains with the seller

property searches

-in the private sector, employers may create a reasonable expectation of privacy by providing a locker and the employee can bring their own lock, but some employers give a lock and they have a master key. many businesses use overt or hidden video cameras as a security method in the workplace to enhance worker safety and to prevent and/or detect theft or other criminal conduct. employees are usually aware of cameras from signs or contracts.

the employment relationship

-it is a consensual, contractual relationship -this exists when, pursuant to an express or implied agreement (contract) of the parties, the employee, undertakes to perform services or to do work under direction and control of another, the employer for compensation. -the contract will ordinarily be expressed, but it may be implied, such as when the employer accepts the rendering of services that a reasonable person would recognize as being rendered with the expectation of receiving compensation.

remedies for wrongful discharge:

-loss of wages -damages for breach of contract -sometimes, though not often, reinstatement the contract of employment may be construed to bar a discharge of the employee except for cause. if so, good cause would then be required for the discharge of an at-will employee. written personnel policies used as guidelines for supervisors have also been interpreted as being part of the employment contract

osha purpose/accomplished

-provide employees with a place of work free form recognized hazards that are likely to cause death or serious physical harm -voluminous regulation

remedies of the buyer

-rejection of improper tender -revocation of acceptance -buyer's action for damages for non delivery-market price recovery -buyer's action for damages for non delivery-cover price recovery -other types of damages

remedies of the seller

-seller's lien -seller's remedy of stopping shipment -resale by seller -cancellation by seller -seller's action for lost profits -other types of damages -seller's action for the purchase price -seller's non sale remedies

unemployment compensation

-social security was founded in 1935, unemployment benefits fall under this federal legislation, but states are given latitude in defining and administering benefits -unemployment benefits apply to full time employees who lose their jobs through no fault of their own who lose their jobs through no fault of their own -no unemployment benefits are available for employees, who quit, are fired for misconduct, or because of a labor dispute -recipients are generally required to show proof they are seeking new employment to qualify for some benefits

characteristics of a good

-tangible: has physical existence...can be touched and seen (NOT intangibles such as stocks, bonds, copyrights, patents...) -moveable: can be carried form place to place (NOT real estate or services)

encumbrances/liens

-the UCC protects buyers who are unaware of any encumbrances (liens) against goods at the time the contract was made UCC 2-312 1b. -if the buyer has actual knowledge of liens, then there would be no breach of this implied warranty -buyers take free of security interest if the seller is a merchant and the goods are bough in the ordinary course of business

Americans with Disabilities Act

-the act prohibits all private employers with 15 or e more employees from discrimination against individuals with disabilities who, with or without reasonable accommodations, are qualified to perform the essential functions of the job. enforcement of the ADA is the responsibility of the EEOC. -disabled is generally defined as suffering from a physical or mental impairment that substantially limits a major life activity

senior systems

-the act provides that differences in employment terms based on a bona fide seniority system are sanctioned so long as the differences do not stem from an intention to discriminate. -most union contracts provide for promotions and work assignments to be based on seniority. whether it is a union or any other employment situation, if there is a bona fide seniority system, they are an exception to title vii

Sumary of OSHA

-the occupational safety and health act of 1970 is federal legislation -the act is the most important legislation that affects safety in the work place -applies to all employers engaged in a business affecting interstate commerce -the act is administered by the OSHA which falls under the dept. of labor

Product Liability General Principles

-there are five theories in law for what is often called product liability, or the protection of buyers for injury and economic loss: express warranty, implied warranty, negligence, fraud, and strict tort liability -warranties are either express or implied. both express and implied warranties operate as though the defendant had made an express promise or statement of fact. both express and implied warranties are governed by the UCC

Who is liable in product liability?

-until the early 20th century, only the parties to a sales contract could recover from each other on product liability issues. a seller was liable to the buyer, but the seller was not liable to others because they were not in privity of contract with the seller or in a direct contract relationship with the seller. -rejected^; the law has moved toward the notion that persons harmed because of a defective product may recover form anyone who is in any way responsible

UCC Rules of Interpretation

-usage of trade (1-205) -course of performance (2-208) -course of dealing -unconscionable UCC (2-302)

Parties may agree when identification occurs, but if the parties do not agree when and how identification occurs, the rules of the UCC apply to resolve the issue. Exceptions to identification:

1. "all" your canned kidney beans 2. fungible goods - goods stored in mass and interchangeable (e.g. corn. wheat, oil, etc.) identification is important because it gives the buyer an insurable interest in the goods 3. other cases, identification takes place when goods are marked, shipped, or somehow designated by the seller as the particular goods under the contract. method of identification is left up to the seller but it must be clear enough to identify the goods to the contract.

Sales talk/opinions

1. This is the best vacuum on the market 2. it'll such up every piece of dust in your house

parties may agree that the goods to be transferred under the contract can be returned to the seller. this type of arrangement in which goods may be returned is classified as one of the following

1. a sale on approval 2. a sale or return

2 exceptions to the federal wiretapping act

1. allows an employer to monitor a firm's telephones in the "ordinary course of business" through the use of extension telephones 2. applies when there is prior employee consent to the interception. if employer monitoring results in interception of business call, it is within the ordinary course of business exception

Exceptions to the general rule that a person cannot pass better title than he or she has:

1. authorization 2. finders of lost property 3. bailments or sale by an entrustee

exceptions to title vii

1. bona fide occupational qualification exception (BFOQ) 2. testing and educational exception 3. seniority systems

remedies of the buyer

1. buyer has right to reject non-conforming or improperly delivered goods 2. specific performance - when goods are unique and buyer's remedy at law is inadequate, then buyer can seek specific performance 3. buyer has right to recover damages for seller's breach 4. buyer has right to cancel contract if the seller is in breach

Identifying Types of Potential Problems and Transactions

1. damage to goods 2. creditors' claims 3. insurance

UCC Article 2 rules will apply to who bears the risk of loss in the following circumstances:

1. delivery with movement of goods - carrier cases a. shipment contracts b. destination contracts

2 primary theories of discrimination

1. disparate treatment 2. disparate impact

Following are "best practices" est. by federal courts to help protect employers form sexual harassment claims:

1. establish a policy prohibiting ALL types of unlawful harassment 2. distribute and publicize the policy 3. develop an effective complaint and investigation procedures 4. train employees and supervisors

the buyer's approval may be shown by:

1. express words 2. conduct or 3. lapse of time

a sale-on-approval is a conditional sale that becomes absolute only when the buyer does one of the following:

1. expressly approves of the sale or 2. keeps the goods beyond a reasonable time or 3. uses the goods in any way that is inconsistent with seller's ownership

Collective bargaining contracts govern the rigths and obligations of employers and employees in many private and public areas of employment. the terms usually found in collective bargaining contracts are:

1. identification of the work belonging exclusively to designated classes of employees 2. wage and benefit clauses 3. promotion and layoff clauses, which are generally tied to seniority 4. a management's rights clause 5. a grievance procedure

goods severed from real estate (UCC 2-107)

1. if severance (removal) is to be made by the seller, then it is a contract for the sale of goods 2. if severance (removal) is to be made by the buyer, then it is a contract involving an interest in real estate and is governed by traditional contract law, NOT UCC Article 2 3. crops (wheat, corn, etc.) - the sale of crops is always considered a sale of goods and is governed by UCC Article 2 irrespective of who (seller or buyer) removes the crops from the land

workers comp statutes provide:

1. immediate medical benefits 2. prompt periodic wage replacement, often computed as a percentage of weekly wages (ranging from 50% to 80% of the injured employee's wage) for a specified number of weeks 3. a death benefit of a limited amount

NOT covered under Article 2

1. investment securities, such as stocks and bonds 2. insurance policies and promissory notes 3. real estate 4. services

the employer may raise an affirmative defense to liability for damage by proving that:

1. it exercised reasonable care to prevent promptly correct ny sexually harassing behavior at its workplace and 2. the plaintiff employee unreasonably failed to take advantage of corrective opportunities provided by the employer. the existence of an employer's sexual harassment policy and notification procedures will aid the employer in proving the affirmative defense in hostile working environment cases

Warranties

1. its brand new 2. it has 75 horsepower

reasonable accommodations for individuals with disabilities include:

1. making exiting facilities accessible to and useable by individuals with disabilities and 2. restructuring jobs, providing modified work schedules, and acquiring or modifying equipment or devices -However, an employer is not obligated under the ADA to make accommodations that would be an "undue hardship" on the employer

an employer may be justified in discharging an empl0yee because of the employee's:

1. nonperformance of duties 2. misrep. or fraud in obtaining the employment 3. disobedience of proper directions 4. disloyalty 5. theft or other dishonesty 6. possession or use of drugs or intoxicants 7. misconduct 8. incompetence

UCC Art 2 rules the court would use to resolve omitted terms in the parties' contract:

1. open price term 2. open payment term 3. open delivery term

duties of the employee

1. perform as required 2. serve honestly and faithfully 3. obey reasonable regulations of the employer 4. exercise due care and ordinary diligence 5. don't divulge trade secrets the duties of an employee are determined by the contract of employment with employer and the law implies certain obligations

Unconscionable at the time the contract was entered into. When a court declares a contract unconscionable, it may:

1. refuse to enforce the contract 2. enforce the contract except for the unconscionable parts 3. limit the application of any unconscionable clauses to avoid an unconscionable result

remedies of the seller (when the buyer is in breach)

1. right to withhold delivery 2. right to stop delivery of goods in transit 3. right to resell goods after buyer's breach 4. the seller has the right to recover damages for the buyer's repudiation (breach) UCC 2-708 5. the seller has right to cancel sales contract if buyer is in breach UCC 2-703

carrier cases

1. shipment contract 2. destination contracts

keep in mind 2 things

1. the UCC covers the sale of goods, NOT real estate or services 2. the rules may vary depending on whether the buyer or seller is a merchant

In the absence of agreement between the parties, the UCC rules apply:

1. the buyer has a duty to furnish facilities reasonably suited for receipt of the goods 2. the buyer has duty to make payment at the time and place buyer receives the goods

Before any interest in specific goods can pass from seller to buyer, two conditions must exist

1. the goods must be in existence, and 2. they must be identified as the specific goods in the contract

disclaimer of express warranties

1. the seller is not required to make express warranties. a seller can protect itself from express warranty liability by not making any express warranties 2. a seller can negate express warranties by specific and unambiguous language in the contract wherein express warranties are negated. the purpose of requiring specific and unambiguous language is to protect the buyer from surprise

The Union contract typically covers:

1. wages and benefits 2. promotion, layoff (typically based on seniority) 3. management's rights 4. grievance procedure (contract violations, discipline, discharge of the employee)

the aggrieved party can do one of the following:

1. wait a commercially reasonable time for the repudiating party to perform 2. resort to any appropriate remedy for breach 3. in either case, suspend performance (proceed under 2-704)

open delivery term

2-308 unless otherwise agreed a. the place for delivery of the goods is the seller's place of business b. if the seller does not have a place of business, then the place for delivery is the seller's residence c. or, a third location known to both parties at the time of the agreement (this alternative takes precedent over a and b)

Parties may agree when identification takes place, but if they do not, the UCC states:

2-501(1) at the time of the contract, if the contract calls for the sale of specific goods already existing.

exception to right to examine goods is

COD, cash on delivery, in a COD shipment, the buyer has no right to examine the goods until payment is made

CHAPTER 38

Regulation of Employment -employment law involves the law of contracts and the law established by lawmakers, courts, and administrative agencies -significant change has taken place in the area of employment law over the past several decades resulting in major implications for employers and employees

CHAPTER 39

Equal Employment Opportunity Law

CHAPTER 22

Nature and Form of Sales

CHAPTER 25

Obligations and Performance

CHAPTER 26

Remedies for Breach of Sales Contracts-

CHAPTER 24

Product Liability: Warranties and Torts

bailemnt

possession, not ownership

Title VII of the Civil Rights Act of 1964

prohibits discrimination in employment because of race, color, sex, religion or national origin (unless there is a bona fide occupation qualification for the discrimination). this act and its amendments eliminate job discrimination against employees, applicants, and union members. this is NOT affirmative action.

merchantable

reasonably fit for the ordinary purposes for which such goods are used...must be of at least average, fair, or medium-grade quality. this is NOT a warranty that the goods are of superior or high quality, only average or fair quality...fit for their ordinary purposes

tender of deliver

requires the seller to have and hold conforming goods at the buyer's disposal and to give the buyer whatever notification is reasonably necessary to enable the buyer to take delivery: reasonable hour and reasonable manner

determining rights: special situations

returnable good transactions; sale-on-approval contract or sale-or-return contracts

Seller is NOT a Merchant (delivery without movement goods)

risk of loss passes to buyer upon tender of delivery (when the seller holds out the goods for the buyer to possess)

Seller is a Merchant (delivery without movement goods)

risk of loss passes to the buyer when the buyer receipts for the goods.

once the time for performance has expired...

seller can still exercise the right to cure if the seller had reasonable grounds to believe that non-conforming tender would be acceptable to the buyer

sellers insurable interest

seller has insurable interest in the goods as long as the seller retains title to the goods. seller also has insurable interest in the goods after passing title if the seller retains a "security interest" in the goods. it is possible for the buyer and seller to have an insurable interest in the same goods at the same time

perfect tender rule

seller is obligated to deliver goods that conform with terms of contract in every detail. if the goods or the tender of delivery fail in ANY respect to conform to the contract, the buyer has the right to 1. accept all of the goods imperfectly tendered 2. reject the entire shipment 3. or accept part of the imperfect tender and reject part of the imperfect tender

shipment contract UCC 2-509 and 3-319

seller's duty-seller must: a. put the goods in hands of carrier b. make a contract for transportation that is reasonable according to the nature and value of the goods c. deliver to the buyer any documents necessary to enable the buyer to obtain the goods from the carrier d. notify the buyer that the shipment has been made However, if seller fails in duty, buyer can reject shipment

action for specific performance

specific is a remedy available only to buyers in those circumstances in which goods are specially manufactured, unique, or rare such as antiques or good with sentimental value for the buyer.

individual employment contracts

subject to statutory restrictions, the parties are free to make a contract on any terms they wish

right to cure

that the buyer must give notice of rejection and the reason for that rejection, if the seller has the right, but not necessarily the intent, to cure. that is, the seller has the right to cure if the seller is able to make the cure within the time not expired, the seller need only give the buyer seasonable notice.

UCC 2-710 provides

that the seller can also recover, as incidental damages, any commercially reasonable charges, expenses, or commissions incurred in reocvering damages.

seller opinion or statement of value continued

the UCC does not permit an exception to the sales talk liability exemption when the circumstances are such that a reasonable person would rely on such a statement.

UCC 2-611

the UCC permits the breaching party to "retract" the repudiation by clearly indicating its intent to perform. once retraction is made, rights of the repudiating party under the contract are reinstated

testing and educational exception

the act authorizes the use of "any professionally developed ability test that is not designed, intended, or used to discriminate." employment testing and education requirements must be "job related." that is the employers must prove that the tests and education requirements bear a relationship to job performance.

the UCC requires that for an express warranty to be created...

the affirmation, promise, description, or sample must become part of the "basis of the bargain"

the repudiating party can retract its repudiation unless...

the aggrieved party has materially changed his position or otherwise indicated that he considers the repudiation final

basis of the bargain

the buyer has purchased the goods because of what the seller has stated about those goods. a statement by the seller regarding quality, capacity, or other characteristic of the goods is an express warranty.

quantity delivered

the buyer has the right to insist that all the goods be delivered at one time. if the seller delivers a smaller or larger quantity than what is stipulated in the contract, the buyer may refuse to accept the goods and it must be within a reasonable time

non-sale remeides of the buyer

the buyer may have remedies based on contract or tort theories of liability. law on torts still applies in UCC Art 2 transactions. seller may be held liable to the buyer for any negligence, fraud, or strict tort liability that occured in transaction. a defrauded buyer may avoid contract and recover damages. buyer also has choice of retaining contract and recovering damages for losses caused by fraud

buyer's duty upon receipt of goods

the buyer must accept goods that conform to the contract, and the refusal to do so is a breach of the contract. however, the buyer has certain rights prior to acceptance

buyer's duty to pay

the buyer must pay the amount stated in the sales contract for accepted goods a. time of payment b. form of payment

right to examine goods

the buyer's right of inspection

what constitutes acceptance of goods?

the buyer, pursuant to a contract, has either expressly or by implication taken the goods permanently. a buyer can accept goods by implication if there is no rejection, or within a reasonable time after the buyer inspected them. another form is by implication is conduct by the buyer and past actions.

course of dealing

the conduct that occurs between parties over multiple contracts ("past practice")

course of performance (2-208)

the conduct that occurs under the terms of a particular agreement

e-mail monitoring

the electronic communications privacy act of 1986 (ECPA) amended the federal wiretap statute and was intended in part to apply to email. however, ordinary-course-of-business and consent exceptions apply to email and it would appear that employers have broad latitude to monitor employee email use.

supplemental security income (SSI) program

the federal social security act established a federal program of aid for the aged, blind, and disabled. payments are administered directly by the social security administration, which became an independent government agency in 1995.

monitoring employee telephone conversations

the federal wiretapping act makes it unlawful to intercept oral and electronic communications and provides for both criminal liability and civil damages against the violator.

determining rights: identification of goods

the identification of the goods to the contract is a necessary step to provide the buyer an insurable interest. how goods that are the subject matter of a contract are identified depends on the nature of both the contract and the goods themselves.

sale of food or drink

the implied warranty of merchantability also applies to the purchase of food in grocery stores and restaurants. the food must be of average quality and fit for its ordinary purposes which is consumption by humans. cases like this include a grasshopper in a can of baked beans. -however, some courts refuse to impose warranty liability if the thing in the food that caused the harm is naturally present such as crab shell in crabmeat.

however, the more "open terms"

the less likely the court will find that parties intended to form a contract; and generally, if the QUANTITY term is left open, the court will have no basis for determining a remedy. in other words the contract must include the quantity term to be enforceable.

duties of the parties

the obligations of the parties to a sales contract include 1. the seller's duty to deliver goods 2. the buyer's duty to accept the goods 3. the buyer's duty to pay for the goods

liquidated damages

the parties may specify the exact amount of damages that may be recovered in case of breach. this clause in a contract can be valid if it meets the standards of UCC Art. 2

contract provisions on remedies

the parties to a sales contract may modify the remedies provided under article 2 or limit those remedies

what is a "sale" UCC 2-106(1)

the passing of title (ownership) form the seller to the buyer for a price. since the passing of title requires a "price," gifts are not covered by UCC Article 2. also, price is NOT limited to just money. the price requirement can be fulfilled by exchanging a good for a good, real estate for a good or service for a good

form of assurance

the person on whom demand for assurance is made must give "such assurance of due performance as is adequate under the circumstances of the particular case" *the UCC does not specify the exact form of assurance

Cure of Defective Tender or Delivery

the reason for the notification of rejection to the seller by the buyer is that UCC gives a right of cure to the seller if the seller tenders or delivers nonconforming goods. the buyer's rejection is not an end to the transaction. the seller is given a second chance, or a "right to cure" to make a proper tender of conforming goods

Risk of Loss in Nonshipment Contracts

the rules for passage of risk of loss from the seller to the buyer in a nonshipment contract make a distinction between a merchant seller and a nonmerchant seller. if the seller is a merchant, the risk of loss passes to the buyer on actual receipt of the goods from the merchant. if the seller is a nonmerchant, the risk of loss passes when the seller makes the goods available to the buyer or upon tender.

time of payment

the sales contract may require payment in advance or may give he buyer credit by postponing the time for payment

disclaimer of warranties

the seller and they buyer may ordinally agree that there will be no warranties. however, in some states, disclaimers of warranties are prohibited for reasons of public policy or consumer protection laws.

seller's duty to deliver UCC 2-503

the seller has the duty to deliver the goods according to the terms of the contract

other types of damages

the seller may incur additional expense because of the breach. some of those expenses can be recovered as damages.

destination contracts 2-503

the seller's duty in destination contracts is to ship conforming goods and have those goods tendered (delivered) at a particular destination -tendered at reasonable hour - provide appropriate notice -provide documents, if necessary

whistle-blower protection under the sarbanes-oxley act (SOA)

the soa prohibits a publicly traded company or any agent of it from taking an adverse employment action against an employee who provides information, testifies, or otherwise assists in proceedings regarding 1. mail, wire, bank, or securities fraud 2. any violation of an SEC rule or regulation 3. any federal law protecting shareholders against fraud

UCC Article 2

the starting point for the law of sales contracts. it is part of the total law of contracts. if the UCC is silent, then the traditional law of contracts applies

open payment term

the time for payment is not included in the agreement; 2-310 when unspecified, "payment is due at the time and place at which buyer is to receive the goods"

Leaves for Military Service under USERRA

the uniformed services employment and re-employment rights act (USERRA) was enacted in 1994 to encourage noncareer service in the armed services, minimize the disruption experienced in the civilian careers of reservists, and promote prompt reemployment of reservists upon return from military leave

race and color

the word race as used in the act applies to all members of the four major racial groupings: black, white, native American, and Asian-pacific

workers compensation is a NO FAULT SYSTEM:

the worker gives up the right to sue the employer in exchange for predetermined compensation for a job related injury

If either party clearly communicates that it does not intend to perform

then it is treated as a present breach of contract by anticipatory repudiation (breach) UCC 2-610

under traditional contract law

there must be a definite offer and an unqualified acceptance to form a binding contract. generally, parties can point to the moment the contract was formed. the UCC is looser, reflecting the reality of many commercial transactions.

express and implied warranties exist

they are interpreted as consistent, if possible. if the warranties cannot be applied together, then the express warranty prevails over any implied warranty except that an implied warranty of fitness for for a particular purpose prevails over an express warranty

equal employment opportunity commission (eeoc)

this administers title vii of the civil rights act, age discrimination in employment act (ADEM), and the Americans with disabilities act (ADA). in most instances, the EEOC issues the charging party (the party claiming discrimination) a right-to-sue letter. thereafter, the individual claiming a violation of the law has 90 days to file a lawsuit in federal court

disparate treatment

this claim exists where an employer treats some idnividuals less favorably than others because of theri race, color, religion, sex or national origin. proof of the employer's discriminatory motive is essential in a disparate treatment case.

disparate impact

this exists when an employer's facially neutral employment practices have a significantly adverse or disparate impact on a protected group. in addition, the employment practice in question is not shown by the employer to be job related and consistent with business necessity. it tis not a defense for an employer to demonstrate that it did not intend to discriminate.

drug and alcohol testing

this is an additional source of privacy concern for employees. public-sector may see drug and alcohol testing as potentially infringing on their 4th and 5th amendment rights. random testing in safety-sensitive positions in the private sector is also permissible. it depends on each situation and case

Adequate Assurance of Performance UCC 2-609

this principle is unique to UCC art 2 sales contracts. there is no equivalent principle associated with traditional contracts. again, one of the objectives of the UCC is to make commerce more efficient. the "adequate assurance" provision in the UCC is intended to help make commerce more efficient

A merchant seller makes an implied warranty of the merchantability of the goods sold.

this warranty is a group of promises, the most important of which is that the goods are fit for the ordinary purposes for which they are sold. this warranty, unless disclaimed, is given in every sale of goods by a merchant

sexual harassment

title vii protects employees from being sexually harassed in the workplace. the protection is not limited to the hiring process, but also applies to work assignments, promotions, compensations, and other employment benefits. these cases fall into two categories: quid pro quo and hostile work environment

national origin

title vii protects member s of all nationalities from discrimination. the judicial principles that have emerged from cases involving race, color, and gender employment discrimination are generally applicable to cases involving allegations of discrimination related to national origin.

religion

title vii requires employers to accommodate their employees' or prospective employees' religious practices. most cases involving allegations of religious discrimination revolve around the determination of whether an employer has made reasonable efforts to accommodate religious beliefs.

the EEOC guidelines broadly define religion

to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious view

Who can recover under UCC waranties

today, not only the buyer but also the customers and employees of the buyer and even third persons or bystanders may recover because of harm caused by a defective product. most states have abolished requirement of privity. a few states require privity of contract, particularly when the plaintiff does not sustain personal injury or property damage and seeks to recover only economic loss.

Unions

unions came about because of abuse of workers with poor working conditions and poor wages. it was not until the 1930s that government finally recognized they needed to make the system fairer. as a result, labor unions became very strong. unions negotiate the contract on behalf of employees = collective bargaining. unions represent their membership. they are still prominent today, but not as much, it is less than 10%.

section 2-314

unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind

form of payment

unless otherwise agreed, payment by he buyer requires payment in cash. the seller may accept a check or a promissory note form the buyer. if the check is not paid by the bank, the purchase price remains unpaid. a promissory note payable at a future date gives the buyer credit by postponing the time for payment.

FOB (free on board) Place of Shipment

unless parties agree otherwise, if the seller's duty is to "ship" the goods, the seller's liability ends when the seller puts the goods in the hands of the carrier

passage of title in nonshipment contracts

unless the parties to the contract agree otherwise, UCC Art. 2 does not require that the seller deliver the contracted-for goods tot he buyer. in the absence of a provision in the contract, the place of delivery is the seller's place of business or the seller's residence if the seller is not a merchant or a third location known to both parties at the time the contract was agreed to. when there is no specific agreement for shipment or delivery of the goods, title passes to the buyer at the time the contract is entered into by the buyer and the seller.

the acceptance

unlike the common law rules on acceptance, which control with detail the method of acceptance, the UCC rules on acceptance are much more flexible. under UCC article 2, an acceptance of an offer may be in any manner and by any medium that is reasonable under the circumstances, the mailbox rule applies to UCC acceptances

insurance

until the buyer has received the goods and the seller has been paid, both the seller and the buyer have an economic interest in the sales transaction. a question that can arise is whether either or both have enough of an interest in the goods to allow them to insure them, in other words, do they have insurable interest?

Family and Medical Leave Act (FMLA) of 1993

up to 12 work weeks of UNPAID leave during any 12-month period 1. due to birth or adoption of a child 2. to care for employee's spouse, child or parent with a serious health condition 3. serious health condition of employee **company may require use of sick days and vacation days toward part of the 12-week leave -to be eligible for FMLA, the employee must have worked 12 moths and at least 1250 hours during preceding 12 months (40 hours per week). when the employee returns from leave, employee is entitled to same or equivalent positions she had prior to FMLA

seller's remedy of stopping shipment

when buyer has breached contract prior to time the goods have arrived at destination, seller can stop goods from coming into buyer's possession. seller has right to stop shipment if buyer has received goods on credit and seller learns that buyer is insolvent, buyer has not provided assurances as requested, or seller has grounds to believe performance by the buyer will not occur. also, right to receive goods in the case of buyer's insolvency continues for "a reasonable time after the buyer's receipt of the goods"

resale by seller

when buyer has breached contract, seller may resell any of the goods the seller still holds. after resale, seller is not liable to original buyer on contract and does not have to surrender profit obtained on resale. but if proceeds are less than contract price, seller can recover loss form og buyer. seller must give reasonable notice about intention of reselling goods. notice does not have to be given for goods that are perishable or decline rapidly in value. seller must abide to commercial reasonableness

Seller's Action for Damages under the Market Price Formula

when the buyer fails to pay for accepted goods, the seller may resell the goods, as discussed earlier, or bring a contract action to recover damages. one formula for a seller's damages is the difference between the market price at the time and place of the tender of the goods and the contract price

cancellation by seller

when the buyer materially breaches the contract, the seller may cancel the contract. such a cancellation ends the contract and discharges all unperformed obligations on both sides. following cancellation, the seller has any remedy with respect to the breach by the buyer that is still available

Warranty of Conformity to Description, Sample, or Model

when the contract is based in part on the understanding that the seller will supply goods according to a particular description or that the goods will be the same as the sample or model, the seller is bound by an express warranty that the goods conform to the description, sample, or model.

destination contracts - contract for delivery at destination (FOB place of destination)

when the contract requires the requires the seller to deliver the contract goods at a particular destination (FOB place of destination), the risk of loss does not pass to the buyer until the carrier tenders the goods at the destination

determining rights: passage of title

when title (ownership) to goods passes to the buyer (following identification) depends on whether the seller is required to ship the goods, and what the terms of that shipping agreement are. in the absence of an agreement by the parties as to when title will pass, several UCC Article 2 rules govern the timing for passage of title

federal arbitration act

with the exception of transportation employees, employers can craft arbitration agreements that require employees to arbitrate any employment dispute, including statutory discrimination claims, and these mandatory arbitration clauses can be enforced in federal court under this act

it is a question of fact - what induced the buyer to enter into the contract?

would a reasonable buyer regard the seller's representation as part of the basis of the bargain. it is not necessary to use words such as "warrant" or "guarantee" to create an express warranty

CHAPTER 23

Title and Risk of Loss

is food a good?

YES! therefore, contracts for the sale of food fall within UCC art 2

WOOOOO GO RUTHIE

YOU ARE DONE (after you read over this 3 times lol)

bailments or sale by an entrustee

a bailee can pass good title to a good-faith purchaser even when the sale was not authorized by the owner and the bailee has no title to the goods but is in the business of selling those particular types of goods.

buyer's actin for damages non delivery - cover price recovery

a buyer may also choose to purchase substitute goods or cover. if buyer acts in good faith, the measure of damages for seller's non delivery or repudiation is then the difference between cost of cover and contract price. the good purchased need not be identical to the contract goods.

Implied Warranty of Fitness for a Particular Purpose (2-315)

a buyer may intend to use the goods for a particular or unusual purpose, as contrasted with the ordinary use for which they are customarily sold. if the seller states that the goods will be fit for the buyer's purpose with the buyer relying on the seller's skill or judgement then the seller has created an implied warranty of fitness for a particular purpose

sale or return

a completed sale with an option or the buyer to return the goods. a sale that can be rescinded by the buyer without liability. a conditional sale in which title and possession pass from the seller to buyer, but the buyer retains the option to return the goods during a specified period of time

consignments

a consignment sale is treated as a sale or return under Art. 2 and the dealer-cosignee has full authority to sell the goods for the cosignor and can pass title to those goods. while the goods are in the possession of the consignee, they are subject to the claims of the seller's creditors

insurable interest

a person will suffer a "pecuniary loss" a loss with some value that generally can be measured in money. once buyers have an insurable interest in goods that are the subject matter of their contracts, they have the right to obtain insurance and can submit for losses on the goods.

secured transaction

a pledge of property by the buyer-debtor that enables the seller to take possession of the goods if the buyer fails to pay the amount owed

action for breach of warranty

a remedy available to a buyer when goods are delivered but fail to conform to warranties is an action for breach of warranty a. notice of breach b. measure of damages

Seller's opinion or Statement of value

a statement about the value of goods or the seller's opinion or commendation of the goods does not create a warranty. section 2 3131b provides an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of goods does not create a warranty. *a buyer cannot hold a seller liable for sales talk

express warranties

a statement by the defendant relating to the goods; the statement is part of the basis of the bargain

Sale of Goods under Article 2

a transfer of title to tangible personal property for a price. this price may be payment of money, an exchange of other property, or the performance of services

liquidated damages must be reasonable at the time of the contract in light of:

a. anticipated actual harm b. difficulties of proof of loss c. inconvenience or non-feasibility of otherwise obtaining an adequate remedy liquidated damages cannot be a "penalty" or be unconscionable. if court views the amount as too large, it will be considered a penalty and the court will not enforce the clause.

express warranties (UCC 2-313) are created by:

a. any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise b. any description of the goods, which is made part of the basis of the bargain, creates an express warranty that the goods shall conform to the description c. any sample or model, which is made part of the basis of the bargain, creates an express warranty that the whole of the goods shall conform to the sample or model

in these two types of transactions, the buyer is allowed to return the goods as an added inducement to purchase

a. sale on approval

Delivery without Movement of Goods

a. seller is a merchant 2-509(1) b. seller in not a merchant 2-509(3)

UCC Exceptions to the Statute of Frauds (2-201 (3) a-c) an oral contract for the sale of goods for $500 or more and $5000 in some states is enforceable for:

a. specially manufactured goods for a particular buyer and the goods are not suitable for resale in the ordinary course of business and the seller has substantially started to manufacture the goods or made commitments for the manufacture of the goods b. the party, against whom enforcement of the contract is sought, admits in pleadings, testimony or other court proceeding that a contract for sale was made c. payment has been made and accepted or the goods have been received and accepted

if both parties are merchants, additional terms automatically become part of the contract unless

a. the offer expressly limits acceptance to the terms of the offer; or b. the additional terms materially alter the contract; or c. the offeror objects within a reasonable time This UCC rule reflects commercial reality.

def of revocation of acceptance

after a buyer accepts a lot or a commercial unit, a return of the goods must be by revocation of acceptance. however it is not a cancellation of the contract with the seller, thus the buyer can choose from the remedies available for breach of contract or demand the seller to deliver conforming goods

finders of lost property

all states have some form of statute giving those who find property the authority to sell the property after certain time periods have passed or when the owner cannot be found. finders of lost property can sell the property and pass good title so long as the finders comply with the state's for doing so.

FOB Place of Destination

an FOB destination contract holds the seller accountable throughout the journey of the goods across the country until the goods are delivered to the destination set out in the contract *title to the goods passes from the seller to the buyer in an FOB destination contract when the goods are tendered tot the buyer at the specified destination

time limits for suits under the UCC 2-725

an action for breach of a sales contract must be commenced within four years after the time of breach. the basic rule is that the time begins to run when the breach occurs

undue harship

an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation. often times it boils down to cost relative to the resources of the employer.

UCC Article 2 changes the common law rule in 2-209

an agreement modifying a sales contract needs no consideration to be binding; all that is required is good faith

UCC 2-204

an agreement sufficient to constitute a contract may be found even though the moment of its making is undetermined...even though one or more terms are left open a contract for the sale of goods 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

change in terms - modification of contract:

an agreement to modify a contract for the sale of goods is binding even though the modification is not supported by consideration. the modification is valid as long as the agreement is voluntary in good faith

trade secrets

an employee may be given confidential trade secrets by employer but must not disclose this knowledge to others. an agreement by the employee to refrain from disclosing trade secrets is binding.

justifiable discharge

an employer can always terminate for cause (non-performance, theft, dishonesty, etc.). employer can also terminate employees for economic reasons (layoffs), but the terminations cannot be in violation of any legislative acts (ex. title vii discrimination based on race, color, religion, sex, or national origin)

creditors' claims

another potential problem that can arise affecting the buyer's and seller's rights occurs when creditors of the seller or buyer seize the goods under the belief that their debtor has title. the question of title or ownership is also important in determining a party's computation of inventory or liability for personal property taxes

cure

another principle that is unique to the UCC. under certain circumstances, the seller has the right to fix the imperfect tender. when tender is rejected because of nonconforming goods and the time for performance has expired, the seller can notify the buyer promptly of its intention to cure and then do so within the time for performance.

Unconscionable UCC 2-302

any contract that is so unfair and one-sided that it would be unreasonable to enforce it (so unfair it "shocks the conscious")

usage of trade (1-205)

any practice or method of dealing having such regularity of observance in place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question

Section 2-313 of UCC

any sample or model which si made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model

an implied warranty of fitness for a particular purpose arises when

any seller (merchant or non-merchant) knows the particular purpose for which a buyer will use the goods and the seller knows that the buyer is relying on the seller's skill or knowledge

limited warranty

any warranty that does not meet the requirements for a full warranty. a limited warranty must be conspicuously described as such by the seller

warranty against encumbrances

applies to all sellers, merchants and non-merchants; every seller makes an implied warranty against encumbrances, that is, that the goods will delivered free from any security interest or any other lien or encumbrance of which the buyer at the time of the sales transaction had no knowledge

warranty of title

applies to all sellers, merchants, and non-merchants. every seller by the mere act of selling makes an implied warranty that the seller has the right to transfer title to the goods. the warranty of title may be disclaimed by using the words, "there is not warranty of title"

statements of opinions

are NOT warranties

passage of title in bailments and other forms of possession

as general rule, a seller can sell only what the seller owns. however, some issues of passage of title can arise in specific circumstances are covered in the following. the general is, a person cannot pass better title than he or she has.

Damages to Unidentified Goods

as long as the goods are unidentified, no risk of loss passes to the buyer. if any goods are damaged or destroyed during this period, the loss is the seller's. the buyer is still entitled to receive the goods described by the contract. the seller is therefore liable for breach of contract if the proper goods are not delivered. there are exceptions: on damage or destruction arise when the parties have expressly provided in the contract that the destruction of the seller's whatever

implied warranty of merchantability (seller = merchant)

automatically arises in every sale of goods made by a merchant who deals in the goods of the kind sold

other types of damages (remedies of the buyer)

buyer is also entitled to collect incidental damages in situations in which he must find substitute goods. it could include additional shipping expenses or commissions paid to find the goods and purchase them. buyers often experience consequential damages, which are those damages the buyer experiences with respect to a third party as a result of seller's breach

cancellation by buyer

buyer may cancel or rescind contract if seller fails to deliver goods, if seller has repudiated contract, or if the goods have been rightfully rejected or their acceptance revoked. a buyer who cancels contract is entitled to recover as much of purchase prices as has been paid including value of any property given as trade-in. buyer may recover from seller the payment on the purchase price and damages for breach of contract. right of the buyer to cancel or rescind sales contract may be lost by a delay in exercising the right.

revocation of acceptance (remedies of the buyer)

buyer may revoke acceptance of goods when they do not conform to contract, defect substantially impairs value of contract to buyer, and buyer either could not discover problem or kept goods because of seller's promise of repair (cure)

payment

can be made by any means agreed to. generally in credit sales (60, 90, 120 days) the period begans on the date of shipment

Goods

cosnists of all forms of tangible personal property, including specially manufactured goods - everything from a fan to a painting to a yacht

Risk of Loss

determines who must pay under a contract in the event the goods that are the subject of the contract are damaged or destroyed during the course of performance

obligations and performance general principles

each party to a sales contract is bound to perform according to the terms of the contract. each is likewise under a duty to exercise good faith in the contract's performance and to do nothing that would impair the other party's expectation that the contract will be performed. "good faith" and "commercial reasonableness" underlie every sales contract under the UCC

USERRA social security

employees and employers are required to pay social security taxes, which provide employees with 4 types of insurance protection: retirement benefits, disability benefits, life insurance benefits, and health insurance (Medicare)

services

employees are under the duty to perform such services as may be required by the contract of employment

Reductions in Force (RIFs)

employers generally have the right to lay off employees because of economic conditions, including a lack of work. such actions are sometimes referred to as this

employer defenses to reemploying a service-person under USERRA

employers may be excused from reemploying or continuing employment may be excused from reemploying or continuing employment of persons under the act when the employer's circumstances have so changed to make reemployment impossible, unreasonable, or an undue hardship. the burden of proof on the matter is on the employer

employee privacy

employers may want to monitor employee telephone conversations in the ordinary course of their business to evaluate employee performance and customer service. they may also monitor email and search for drugs. litigation may result because employees may believe that such activates violate their right to privacy

sex

employers who discriminate against female or male employees because of their sex are held to be in violation of title vii. as of summer 202 sex also includes sexual orientation and transgender people

revocation of acceptance

ever after acceptance of the goods, the performance under the contract may not be finished if the buyer exercises the right to revoke acceptance of the goods, this is not effective until notice is given to the seller within reasonable time

obligation of faith

every contract or duty within the UCC imposes an obligation of good in its performance or enforcement. the UCC defines good faith as "honesty in fact in the conduct or transaction concerned." in the case of a merchant seller or buyer of goods, the UCC carriers the concept of good faith further. the UCC imposes the additional requirement that merchants observe "reasonable commercial standards of fair dealing in the trade"

UCC 1-203 provides...

every contract or duty within this act imposes an obligation of good faith in its performance or enforcement

substantial impairment

fails to conform in any respect; requires proof of more than the mere fact that the goods do not conform to the contract. needs to be super different

compensation for employee's injuries

for most kinds of employment workers' compensation statutes govern compensation for injuries. these statutes provide that an injured employee is entitled to compensation for accidents occurring in the course of employment from a risk involved in that employment

inspection rights

generally the buyer has the absolute right to inspect the goods. if the goods are not what the buyer ordered, then the buyer has no duty to pay

what is a "good" UCC 2-105

generally, a good is something that is tangible and moveable

general contract info

generally, all contracts are assumed to be shipment contracts if nothing to the contrary is stated in the contract

Effect of Breach in Risk of Loss

generally, the party in breach of contract bears the risk of loss. when seller breaches contract by sending buyer goods that do not conform to the contract and the buyer rejects them, the risk of loss does not pass to the buyer. if there has been breach, the risk of loss remain with the seller even though the risk, according to the contract terms or the Art. 2 rules discussed before, would ordinarily have passed to the buyer.

Buyer breaches the contract UCC 2-510(3)

generally, when the buyer breaches the contract, tisk of loss immediately shifts to the buyer

collective bargain contracts

govern the rights and obligations of employers and employees regarding those employees within he bargaining unit (those employees covered by the union contract)

"at will"

historically most employees have been "at will" (at the will of the employer). an employer could terminate an (at will) employee for good reason or for no reason. this is still relevant today, however, many legislative changes have taken place that provide protections to employees from terminations at will.

Risk of loss is resolved primarily under section 2-509

however, it may depend on if contract has been breached at the time of loss - UCC Art 2 2-510

Determining Rights: Risk of Loss

identification determines insurability and title determines rights of such third parties as creditors

UCC 2-608 1a

if acceptance was predicated on the reasonable assumption that a non-conformity would be cured, and it has not been cured within a reasonable period, then the buyer can revoke acceptance

failure to give assurance

if adequate assurance is not given within 30 days from the time of demand, the demanding party may treat the contract as repudiated. the party demanding assurances may then proceed as if there were a breach and may pursue damage remedies. the non-breaching party also has the right to enter into a substitute contract with a third person to obtain goods contracted for under the now broken contract

shop right

if an invention is discovered during working hours with the employer's materials, the employer has the right to use the invention in its business without charge. the employer may not own the invention the employee developed at work, but the employer has the right to use it without paying for it as a "shop right"

UCC 2-608 1b

if buyer does not discover non-conformity, because it is difficult or cause the seller's assurance that the goods are conforming kept the buyer from inspecting the goods

notice of breach

if buyer has accepted goods that do not conform to contract or there has been breach of any warranties given, buyer must notify seller of breach within a reasonable time after breach is discovered or should have been discovered

meaurse of damages

if buyer has given necessary notice of breach, buyer may recover damages measured by loss resulting in normal course of events from breach. if suit is brought for breach of warranty, measure of damages is difference between the value of goods as they were at time of tender and the vale that they would have had if they had been as warranted

right to stop delivery of goods in transit UCC 2-705

if buyer is insolvent, repudiates contract, or breaches contract in some other manner, seller can stop delivery. also, if buyer breaches while goods are in transit, seller can stop delivery

right to resell goods after buyer's breach

if buyer repudiates (breaches) contract, seller can resell the goods and hold buyer liable for any loss. (seller has a duty to mitigate damages, which might mean reselling the goods)

delivery and shipment terms

if delivery is required under the terms of the parties' agreement, the seller is normally required only to make shipment, and the seller's part of the contract is completed by placing goods in the possession of a carrier for shipment. however, the parties may agree to various shipping provisions that affect the passage of title under UCC article 2

seller's action for the purchase price

if goods are specially manufactured and the buyer refuses to take them, it is possible for the seller to recover as damages the full purchase price and keep the goods

rejection of improper tender

if goods tendered by the seller do not conform to contract in some way, buyer may reject them. (perfect tender rule) however, rejection is the beginning of buyer's remedies. following rejection, buyer can proceed to recover under various formulas provided for buyer under UCC

Remedies for Breach of Sales Contracts

if one of the parties to a sale fails to perform the contract, the non-breaching party has remedies under Article 2 of the UCC. In addition, the parties may have included provisions regarding remedies in their contracts.

Damage to Identified Goods AFTER Risk of Loss Passes

if partial damage or total destruction occurs after the risk of loss has passed to the buyer, it is the buyer's loss. the buyer may be able to recover the amount of the damages from the carrier, an insurer, the person in possession of the goods (such as a warehouse), or any third person causing the loss

buyer's action for damages for non delivery - market price recovery

if seller fails to deliver goods as required by contract or repudiates contract, buyer is entitled to collect form seller damges for breach of contract

place, time, and manner of delivery

if the agreement does not specify UCC 2-308 1. seller's place of business, if none, 2. seller's residence, but 3. if the goods have been identified and the parties know when they enter the contract that the goods are located other than the seller's place of business or residence, THEN the correct location for delivery of goods is the third location known to both parties when they entered into the contract

seller's action for lost profits

if the market and resale price measures of damages do not place the seller in the same position in which the seller would have been had the buyer performed, the seller is permitted to recover lost profits

risk of loss in shipment contracts

if the parties have agreed to delivery or shipment terms as part of their contract, the rules for risk of loss are different

In contrast to Form of Assurance

if the party's reputation or economic position at the time is such that mere words and promises would not give any real assurance, it may be necessary to have a third person (or insurance company) guarantee performance or to put up property as security for performance

UCC Statute of Frauds 2-201

if the price is $500 or more ($5000 in some states) there must be a writing for the contract to be enforceable. the writing must be signed by the party against whom enforcement is sought

open price term

if the price is omitted in the agreement - send me 100 cases of tomatoes; 2-305 if the price is omitted in the agreement, the court will determine a "reasonable price" at the time for the delivery of the goods

shipment contract: 2-509 (1) (b)

if the seller is required/authorized to ship goods by carrier (not required to deliver to a particular destination) risk of loss passes to buyer when the goods are delivered to the carrier

repudiation of the contract

if the seller or the buyer refuses to perform the contract prior to when the time for performance arises, a repudiation of the contract results, which is referred to as anticipatory repudiation (breach)

time requirements of obligations

in a cash sale, that does not require delivery of the goods, the duties of the seller and buyer are concurrent

Contract for Shipment to Buyer (FOB Place of Shipment)

in a contract for shipment only, or FOB place of shipment, risk of loss passes to the buyer at the same time as title does: when the goods are delivered to the carrier, that is, at the time and place of shipment. after goods have been delivered tot he carrier, the seller has not liability for, or insurable interest in the goods unless the seller has reserved a security interest in them.

other theories of product liability

in addition to recovery for breach of an express warranty, or an implied warranty, a plaintiff in a given product liability case may be able to recover for negligence, fraud, or strict tort liability

authorization

in certain circumstances, persons who just possess someone else's property may sell the property and pass title if they have been authorized to do so by the titleholder (owner) of the good

disclaimer of implied warranties (2-316)

in consumer contracts, the sue of terms such as "as is" can also disclaim warranties, as it does for merchant transactions, but the disclaimers must be in the record and must be conspicuously set forth in that record.

Right to withhold delivery UCC 2-703

in general, seller can withhold or discontinue performance under sales contract when buyer is in breach

duration and termination of a non-union employment contract

in many instances, employment contract does not stay time or duration. it may be terminated at any time by either party. in contrast, the employment contract may expressly state that it shall last for a specified period of time, an example would be an individual's contract to work as general manager for five years

warranty of (good) title 2-312 1a

in most cases, sellers warrant they have good and valid title to the goods sold and that transfer of title is rightful

eligibility

in most states, an unemployed person must be available for placement in a similar job and willing to take employment at a comparable rate of pay. full-time students generally have difficulty proving that they are available for work while they are still going to school *employers are taxed for unemployment benefits based on each employer's "experience rating" (how many and how often employees are laid off)

UCC Merchant

in some instances, the UCC holds a merchant to a higher standard than a non-merchant because of the merchant's commercial expertise..."a person who deals in goods of the kind" in the sales contract. by dealing in a certain kind of goods, the merchant holds himself out as having knowledge and skill particular to the practices or goods involved in the transaction

Damage to or Destruction of Goods

in the absence of a contract provision, UCC Art. 2 provides for certain rights for the parties in the event of damage to or destruction of goods that are the subject matter in a contract.

seller's lien

in the absence of an agreement for the extension of credit to the buyer for the purchase of goods, and until buyer pays for the goods/performs whatever actions the contract requires, the seller has right to retain possession of goods

Damage to Identified Goods BEFORE Risk of loss Passes

in this case, the buyer has the option, after inspecting the goods, to either avoid the contract or accept the goods subject to an allowance or a deduction from the contract price. there is no breach by the seller, so the purpose of the law is simply to eliminate the legal remedies, allow the buyer to choose to take the goods, and have the insurers involved

osha enforcement

inspections. violations result in fines (no criminal penalties). under the act, an employer cannot discharge or discipline an employee who files a complaint, or who, in good faith, refuses to work in a high-risk area (if bodily harm or death might result) same rationale as public policy exception, but this exception has been legislated

inventions

inventions belong to the employee unless the employee was hired for that purpose

quid pro quo

involves situations in which a supervisor performs an "official act" of the enterprise, such as discharge, demotion, or undesirable reassignment, against a subordinate employee because of the employee's refusal to submit to the supervisors demand for sexual favors. aka supervisors demanding sexual favors in return for job benefits. damages usually cover lost wages, but sometimes, punitive damages are also awarded

firm offers, UCC 2-205

is an offer made by a merchant, in writing, signed by the merchant, promising to keep the offer open for a specified amount of time, or if a specified time is not stated then a reasonable time, but in either case, not to exceed three months. it is binding and irrevocable, and it requires no consideration.

terms for expressed warranty

it can be written or printed as well as oral. the words on the label of a can and in a newspaper ad for "boned chicken" constitute an express warranty that the can contains chicken that is free of bones

USERRA Protections

it generally requires returning reservists to be "promptly reemployed" and returned to the same or comparable positions of like seniority, status, and pay they would have had if they had not been activated. it also provides protecting for those disabled while in the service and requires employers to make reasonable efforts to accommodate each employee's disability so that each individual may return to the same or comparable positions or, if no longer qualified, allow for transfer to a position the disabled individual can perform closest to prior position terms.

time of making express warranty

it is immaterial whether the express warranty is made at the time of or after the sale. no separate consideration is required for the warranty when it is part of a sale. if a warranty is made after the sale, no consideration is required because it is regarded as a modification of the sales contract.

UCC 2-313 (2) states

it is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that the seller have a specific intention to make a warranty

Hybrid Contracts

it is not uncommon for a contract to have characteristics of "goods" and "services," if a dispute arises between parties of a hybrid contract, a question for the court is "which law should be applied to the case" - traditional contract law or UCC Article 2

Bona Fide Occupational Qualification (BFOQ)

it is not unlawful employment practice for an employer to hire employees based off race, color, religion, sex, or national origin in those certain instances where these things is a bona fide occupational qualification reasonably necessary to the normal operation of a particular enterprise.

Statute of Limitations

judicial remedies have time limitations. after expiration of the period of time, the party seeking a remedy can no longer resort to the courts. The UCC S.O.L applies to action brought for remedies for the breach of a sales contract. when suit is about a tort theory such as negligence, fraud, or strict tort liability, other general statutes of limitations apply

The Offer (elements of a sale contract)

just as in common law contracts, the offer is the first step in formation of a sales contract under article 2.

equal employment opportunity law

laws of the U.S. reflect our society's concern that all Americans, including minorities, women, and persons with disabilities, have equal employment opportunities and that the workplace is free form discrimination and harassment. title vii of the civil rights act of 1964, as amended in 1972, 1978, and 1991, is the principal law regulating equal employment opportunities in the US. other federal laws require equal pay for men and women doing substantially the same work and forbid discrimination because of age or disability.

risk of loss

loss from causes beyond buyer's control would be borne by the seller. however, the buyer would be liable for buyer's negligence or intentional misuse of the goods

acceptane

manifested in three ways: 1. accept by words or conduct 2. acceptance is presumed if not rejected in a reasonable amount of time 3. if the buyer performs any act inconsistent with seller's ownership, then it is treated as an acceptance

seller's non sale remedies

many seller enter into other transactions that provide protection from buyer breaches. one is afforded when the seller obtains a security interest form buyer under UCC art 9.

examples of reasonable accommodations

might include flexible schedules (to accommodate religious services or holidays), shift swapping or reassignment to another job or department

self-service stores

most courts hold that there is no transfer of title until the buyer makes payment to the cashier

stolen property

neither those who find stolen property nor thieves can pass title to goods. a thief simply cannot pass good title to even a good-faith purchaser. anyone who has purchased stolen goods must surrender them to the true owner.

Form of Express Warranty

no particular group of words is necessary to constitute an express warranty. a seller need not state that a warranty is being made or that one is intended. it is sufficient that the seller asserts a fact that becomes a basis of the bargain or transaction between the parties.

sale on approval

no sale takes place until the buyer approves or accepts the goods. title and risk of loss remain with the seller until there is an approval. it is not a sale until the buyer accepts (approves) the offer

If the product cannot be fixed or if a reasonable number of repair attempts are unsuccessful, the buyer has the choice of a cash refund or a free replacement

no unreasonable burden may be placed on a buyer seeking to obtain warranty service

hostile work environment

occurs when supervisor's conduct does not affect an employee's economic benefits but causes anxiety and "poisons" the work environment for the employee. an employer is liable for the sexual harassment caused its employees by coworkers when the employer knew, or should have known, of the misconduct and failed to take prompt remedial action. employment benefits are not affected. the remedy is injunction, unless the conduct drives the employee to quit, then the employer may be liable for economic losses and possibly punitive damages

effect of identification

once goods that are the subject matter of a contract have been identified, the buyer has an insurable interest in them. identification is the first step in resolving questions about liability for damaged goods and rights of the parties and third parties, including creditors, in the goods. UCC 2-401 (10 provides, "title" [ownership] to goods cannot pass under a contract for sale prior to their identification to the contract")

damage to goods

one potential problem occurs if the goods are damaged or destroyed without any fault of either the buyer or the seller. with no goods, and performance under the contract still required, the parties have questions

implied warranty

one that was not expressly made by the seller but that is implied in certain circumstances by law. it arises automatically from the fact that a sale has been made regardless of the seller's conduct

exception to the requirement of the quantity term

output and requirements contracts (output contract = promisor agrees to sell all of her output to the buyer. requirements contract = promisor agrees to buy all f his requirements from the seller)

exceptions to the perfect tender rule: agreement to parties

parties may agree that imperfect tender will not be rejected if the seller can repair or replace the goods within a reasonable time

limations of remedies

parties may limit remedies that are provided by UCC in the case of breach of contract. seller may specify that only remedy of buyer for beach of warranty will be repair or replacement of goods or that the buyer will be limited to returning goods and obtaining a refund of the purchase price, subject to restrictions

UCC 2-719

parties, by agreement, may limit or modify remedies provided by the UCC

buyer's insurable interest

per the UCC; the buyer has an insurable interest in identified goods. the buyer would have a property interest even though the risk of loss has not yet passed to the buyer