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3. Conformity to Contract as Irrelevant to Identification Goods can be identified to a contract regardless of whether they conform to the contract. [2 Hawkland UCC Series § 2-501:1, Westlaw (database updated June 2021).] 4. Rules in § 2-501 as Mere Default Rules Subject to Contrary Agreement The rules in § 2-501, like many provisions of Article 2, are default rules. That is, those rules apply if the contract does not speak to the time or manner of identification. If the contract spells out the time or manner of identification, then the contract controls. [2 Hawkland UCC Series § 2-501:1, Westlaw (database updated June 2021).] 5. Seller’s Limited Right to Substitute Identified Goods Special rules apply if the seller alone identifies the goods. Here, the seller may substitute other goods for the identified goods until (1) the seller defaults or becomes insolvent or (2) the buyer receives notification that the identification is final. [U.C.C. § 2-501(2) (1951); 2 Hawkland UCC Series § 2-501:1, Westlaw (database updated June 2021).] Gap Fillers Article 2 contains a great many provisions colloquially known as gap fillers. Broadly speaking, gap fillers are default rules that apply only insofar as the relevant contract (as interpreted in light of course of performance, course of dealing, and usage of trade) does not address whatever issue the statute covers. Gap fillers commonly begin with language such as “unless otherwise agreed.” In this vein, then, gap fillers are those rules that the parties may alter by agreement. Here, this outline covers a few of Article 2’s more prominent and important gap fillers. Many other gap fillers are covered elsewhere in this outline. [ See 12 Bus. & Com. Litig. Fed. Cts. § 119:25 (4th ed.), Westlaw (database updated Dec. 2020).] 1. Open Price Term Parties can form a contract for the sale of goods even if they have not settled the price. Here, § 2-305 provides that the price is a reasonable price at the time the goods are delivered, provided one of three requirements is met: the contract says nothing as to price; the contract leaves the parties to agree on a price, yet they never agree on one; or the contract fixes the price with reference to some standard, such as a market standard, established or recorded by a third party, yet the standard is never established or recorded.
[U.C.C. § 2-305(1) (1951).]
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