Uniform Commercial Code
The Uniform Commercial Code (UCC) is a collection of laws that defines the structure of several commercial transactions. Its main purpose is to create uniformity among several types of secured transactions, making it possible for business to be conducted with the same foundations of standards applicable to both buyer and seller.
Complying with the UCC is complicated and the penalties for non-compliance are steep. The UCC was created by the American Law Institute and the National Conference of Commissioners on Uniform State Laws in in an effort to standardize buying and selling of goods and services across state lines. While several versions of the UCC have been drafted, for companies conducting business in states that have adopted the code, it remains the overriding guide for compliance in conducting business across state lines. A skilled UCC attorney is recommended to ensure compliance.
Bret Gerard is an experienced UCC attorney having guided many clients through issues, including compliance, seller’s and buyer’s rights, delivery and acceptance of goods, and remedies upon breach.
Bret’s client was a trader of commodities with an expertise in trading copper. The client contracted to purchase copper from a Texas company. The price was set by reference to a commodities exchange known as COMEX. In August 2010, Bret’s client confirmed that it would purchase 100,000 lbs. of copper at a price of $3.31 per pound. The Texas company was to deliver the load to North Carolina by Sept. 30, 2011. The seller failed to deliver and breached the contract. The seller claimed that there was no written contract between the parties, only some e-mail exchanges that the seller contended were non-binding in nature.
After looking at the relevant documents, including the history of the relationship between the two parties, Bret noticed that the two parties had transacted business on two separate occasions prior to August 2010. Neither of the prior transactions was evidenced by a contract. The terms for pricing and payment for the goods were identical in both transactions and significantly, neither transaction required payment in advance of shipment.
Suit was filed against the Texas company in federal court in Dallas. Bret’s client sought an amount equal to the difference between the market price at the time when Buyer learned of the breach and the contract price, together with any incidental or consequential damages, but less any expenses saved in consequence of Seller’s breach. The market price for copper climbed significantly during the month of September 2010. The difference between the market price and the contract price was approximately $1.09 per pound.
The Texas company (the seller) contended that there was no written contract and that the e-mail exchanges and past dealings were not enough to make a contract stand up in court. Bret argued that the “Merchant’s Exception” applied to the transaction. This exception states that if, within a reasonable time, a writing in confirmation of the contract and sufficient against the sender is received, and the party receiving it has reason to know its contents and does not give written notice of its objection within 10 days after receipt, there need not be a written contract between the parties.
Bret also explained to the Court that the two prior transactions were important to the extent that they evidenced course of dealing between the parties. In other words, it was these parties’ course of dealing to trade with each other WITHOUT a written contract.
The case was settled before the beginning of trial and Bret’s client recovered damages and attorneys’ fees in the settlement.
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