• If you are citizen of an European Union member nation, you may not use this service unless you are at least 16 years old.

  • Get control of your email attachments. Connect all your Gmail accounts and in less than 2 minutes, Dokkio will automatically organize your file attachments. You can also connect Dokkio to Drive, Dropbox, and Slack. Sign up for free.


Formation of Sales Agreements-statements

Page history last edited by abogado 4 years, 8 months ago

Team Presentations-Law1-Fall2015


  • Read Fallsview Glatt Kosher Caterers v. Rosesnfeld

  • Explain the following case statements 
  • #1 - In lieu of an answer, Mr. Rosenfeld has moved for dismissal of the complaint pursuant to CPLR 3211 (a) (5), contending that the action is barred by section 2-201 of the Uniform Commercial Code.
  • #2 - Section 2-201 provides that, subject to stated exceptions, "a contract for the sale of goods for the price of $500 or more is not enforceable ... unless there is some writing sufficient to indicate that a contract for sale has been made between the parties 559*559 and signed by the party against whom enforcement is sought." (UCC 2-201 [1].) Although Mr. Blander's affidavit states that Mr. Rosenfeld "vigorously denies the existence of anyagreement — oral or written" (see affidavit in support of motion to dismiss complaint ¶ 3), there is no affidavit from Mr. Rosenfeld to that effect or denying that there is "some writing sufficient to indicate that a contract for sale has been made" that was signed by or for him (see UCC 2-201 [1]). 
  • #3 - Although Fallsview has not explicitly conceded that no qualifying writing exists, both parties have focused their legal and 560*560 factual arguments on a single question — that is, whether the alleged agreement that is the basis for Fallsview's action is a "contract for the sale of goods for the price of $500 or more" within the meaning of section 2-201 (1). The parties having charted that course (see Vasinkevich v Elm Drugs, 208 AD2d 522, 523 [2d Dept 1994]), supported by considerations of judicial economy, the court sees no compelling reason not to address the question.
  • #4 - Presented with a "hybrid sales-services contract" (see id.), that is, a contract that calls for the furnishing of both goods and services, the court must decide whether to apply the law applicable to a sale of goods, currently article 2 of the Uniform Commercial Code as adopted in this state, or to apply the law applicable to service contracts, the general law of contracts or some specialized portion thereof. The agreement alleged in the complaint (and limiting attention for the moment to the complaint alone) calls for the furnishing of "accommodations, food and entertainment" (complaint ¶ 1) with "food" qualifying as "goods" (see UCC 2-105 [1]).
  • #5 - In Perlmutter v Beth David Hosp. (308 NY 100 [1954]), a case decided under the pre-Code Sales Act, the Court of Appeals held that "when service predominates, and transfer of personal property is but an incidental feature of the transaction, the transaction is not deemed a sale within the Sales Act" (id. at 104). "[I]t is the transaction, regarded in its entirety, which must determine its nature and character" (id. at 106). The Court "look[s] at the transaction for what it actually is" (id. at 107), seeking the "essence of [the] particular contract" (id. at 106), "the main object sought to be accomplished" (id.).
  • #6 - The holding in Temple v Keeler that the furnishing of food in a restaurant or hotel is accompanied by an implied warranty of fitness is now part of the Uniform Commercial Code. Section 2-314 (1) states that "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," unless the warranty is excluded or modified as permitted in a separate provision, and that "[u]nder this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale." (UCC 2-314 [1] [emphasis added].) Thus the Uniform Commercial Code resolved the conflict among the states on the question addressed by Temple v Keeler, adopting the answer given by our Court of Appeals. (SeeSofman v Denham Food Serv., Inc., 37 NJ 304, 309-312, 181 A2d 168, 171-173 [1962] [Schettino, J., concurring].)
  • #7 -  The court accepts Mr. Blander's characterization of Fallsview's Passover program as an "experience," and has no basis to dispute that, for him, its "very essence" is the "presentation and enjoyment of abundant, frequent and high quality Kosher for Passover cuisine." But a review of the characteristics of the "program," which is the subject matter of the alleged agreement, leads the court to conclude that the "essence" of the family and communal "experience" is defined primarily by "services" and not by "goods." The consequences of that conclusion, i.e., that the alleged agreement is not subject to the article 2 statute of frauds, is supported by the structure, terms, purpose and context of the statutory provision.
  • #8 - Plaintiff argues that "[d]efendant's proposition that a hotel reservation is a sale of goods would render all reservations made via telephone or the internet unenforceable and would leave hotels in a precarious economic position." (Affirmation of Sheldon Eisenberger in opposition to defendant's motion to dismiss the complaint ¶ 10.) That may or may not be true, but the argument does highlight the importance of ensuring that a statute of frauds structured and outfitted by the Legislature for a particular transactional context not be casually applied to a very different commercial segment and model. The structure and 567*567 terms of section 2-201 tell us that it was not intended to cover the agreement alleged in this complaint. Defendant's motion to dismiss is denied.
  • #9 - Who won the case, and provide a conclusion


Comments (0)

You don't have permission to comment on this page.