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performance and may sue, in her own name, to enforce the assigned rights—subject to any defenses the obligor could assert against the assignor.
III. Interpreting the Contract
Article 2 boasts many rules governing contract interpretation.
Parties’ General Obligations The seller’s general duty is to deliver goods (1) of the kind, (2) in the quantity, (3) conforming to the quality, and (4) at the time required in the contract. The buyer’s is to accept and pay for conforming goods according to the contract. The buyer’s obligation to pay persists, even if the buyer is insolvent or unable to pay. Neither party is entitled to receive performance unless she herself has tendered performance. But the mere fact that the other party has not tendered performance does not necessarily relieve a party of her obligations. Unconscionability Unconscionability applies if the court finds that, at contracting, the whole contract or any of its terms were unconscionable. Here, the court may (1) decline to enforce the contract altogether, (2) enforce the contract without the unconscionable provision, or (3) limit the unconscionable clause’s application as justice requires. 1. Basic Test for Unconscionability There are two types of unconscionability: procedural and substantive. Normally, both types must exist, but not necessarily to the same degree. a. Procedural Unconscionability Procedural unconscionability speaks to the fundamental fairness of the bargaining process, as opposed to terms, emphasizing things like fine print, misrepresentations, disparate bargaining power, and so on. Relevant factors include: the phrasing, clarity, and placement of the assertedly unconscionable terms; whether the terms were available to the party asserting unconscionability before she entered the contract; the parties’ relative sophistication; whether the contract was one of adhesion; whether one would reasonably expect the challenged terms to appear in the type of transaction;
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