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84-2-204. Formation in general. (1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.

(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.

(3) Even though one or more terms are left open a contract for sale 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.

History: L. 1965, ch. 564, ยง 28; January 1, 1966.

KANSAS COMMENT, 1996

This section sets out the Code's liberal policy toward contract formation. Subsection (1) recognizes that parties can form a contract by any manner of expression, including conduct, sufficient to show agreement. Under subsection (3), a contract does not fail for indefiniteness so long as the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. Kansas courts have routinely found enforceable contracts even though one or more terms were left open at the time the contract was formed. See Southwest Eng'g Co. v. Martin Tractor Co., 205 K. 684, 473 P.2d 18 (1970); Geo. C. Christopher & Son, Inc. v. Kansas Paint & Color Co., 215 K. 185, 523 P.2d 709, modified on rehearing on other grounds, 215 K. 510, 525 P.2d 686 (1974); Stanturf v. Quality Dodge, Inc., 3 K.A.2d 485, 596 P.2d 1247 (1979). Missing terms are supplied by Article 2's many "gap-filler" provisions, thus providing the necessary definiteness of terms for a court to order an appropriate remedy. See 84-2-305 to 84-2-311. Accordingly, the parties' intent to make a contract is the key factor under the Code.

Law Review and Bar Journal References:

"URLTA, Kansas, and the Common Law," Michael J. Davis, 21 K.L.R. 387, 395 (1973).

"Underlying Philosophy of Article 2," John E. Murray, Jr., 21 W.L.J. 1, 5 (1982).

"Too Much Good Faith in Real Estate Purchase Agreements? Give Me an Option," Harvey L. Temkin, 34 K.L.R. 43, 54 (1985).

"Electronic Commerce in Kansas: Contract Formation and Formalities Under Article 2," Christopher R. Drahozal, 68 J.K.B.A. No. 5, 22 (1999).

CASE ANNOTATIONS

1. Failure to agree on terms of payment would not, of itself, defeat an otherwise valid agreement reached by parties to a contract. Southwest Engineering Co., Inc. v. Martin Tractor Co., Inc., 205 Kan. 684, 691, 473 P.2d 18.

2. Subsection (3) applied; contractual relationship based on specifications and bids upheld; implied warranty of fitness. Christopher and Son v. Kansas Paint and Color Co., 215 Kan. 185, 192, 523 P.2d 709. Modified: 215 Kan. 510, 525 P.2d 626.

3. Contract does not fail for indefiniteness if parties intended to make contract. Stanturf v. Quality Dodge, Inc., 3 Kan. App. 2d 485, 486, 487, 596 P.2d 1247.

4. Action to collect federal excise taxes on diesel fuel; a valid contract existed and breached by mutual mistake; defendant would have been unjustly enriched. Continental Oil Co. v. Ideal Truck Lines, Inc., 7 Kan. App. 2d 153, 156, 638 P.2d 954 (1982).

5. Parties conduct sufficient to establish contract formed. Smith & Loveless, Inc. v. Caicos Corp., 471 F. Supp. 2d 1140, 1151 (D. Kan. 2007).


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