severable from the property because
removing the pool would result in a large,
deep, torn-up hole; a long, narrow torn-
up hole where the plumbing was buried
and a torn-up deck area.
Goods or for a Service?
been determined, the UCC analysis is
far from complete. The UCC applies
to sale of goods, not services. Typical
engineering contracts are mixed goods
and services contracts. For instance,
where a company orders a custom
engineered and manufactured item,
is the contract simply for that item (a
good) or for the services that go into
engineering that item? Another example:
an item that is purchased that has
ongoing technical support of some kind.
Is the purchaser buying the item or the
support? The answer is probably a bit of
both. Since the UCC is silent on how to
treat the mixed contracts, many courts
use the "predominant factor test."
for the inclusion in or the exclusion
from sales provisions is whether the
predominant factor and purpose of the
goods incidentally involved, or whether
the contract is for the sale of goods, with
labor incidentally involved.
and services contracts, the plaintiff
builder sued a subcontractor for breach
of contract relating to a contract to design
and provide steel for several structures.
The dispute arose before construction.
The court held that the contract was one
for sale of goods, not services, despite
the engineering that went into designing
the building. Specifically, "the fact that
a specially designed product to fulfill the
needs of the project was required does
not negate the characterization of the
transaction as a sale of goods."
other cases where the predominant
purpose was found to be a service. For
instance, where parties entered into
a contract to supply gravel to a road
project, the hauling of gravel was found
to be the predominant purpose, not the
purchase of gravel.
a mason who supplied labor and bricks
after the bricks began flaking, the
contract was determined to be one for
masonry services.
bricks being included in the contract.
professional liability case involving the
sale of goods, it is important to consider
the impact of the UCC Article 2 on the
litigation. Begin by determining if the
contract is one for the sale of goods and
if the engineered item meets the UCC's
definition of a "good." Then review the
UCC's applicable sections on damages
and remedies in order to understand the
full impact of the UCC on the litigation's
end game. Finally, review the contract in
detail and determine what, if any, impact
the contract has upon the UCC's defenses
and damages.
Reeves Red-E-Mix Concrete, Inc., 350 N.E.2d 321 (1976),
Lakeside Bridge & Steel Company v. Mountain State
Construction Company, 400 F. Supp. 273 (1975).
986, (D.HI.1994), Keck v. Dryvit Systems, Inc., 830 So.2d
1, 8-9 (Ala. 2002), Loyd v. Ewald, 2nd Dist. Miami No.
87-CA-33, 1988 WL 37484, (1988).
4 Loyd v. Ewald, 2nd Dist. Miami No. 87-CA-33, 1988 WL
Consumers" (2007). Student Scholarship Papers.
Paper 47.