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Fla. L. Rev.


This article considers whether providing additional content to the concept of good faith in the area of contract modification is possible or desirable. The article explores the modification puzzle and the issues of erratic justice that result from the nebulous nature of the UCC test, and evaluates an alternative test (the sequential approach) that scrutinizes each step of the modification process and imports the standard of reasonable grounds into this context.

Part II discusses terminology and fundamental concepts in this area of law, including the reasons for seeking a modification, the steps of a modification, and the typical defense to an action to enforce a modification. Part III considers the social utility of contract modifications. Part IV surveys the available standards for judging modifications, discusses the Restatement approach to the modification problems, and evaluates the benefits and possible limitations of a "reasonable grounds" standard. Part V compares the traditional approach of the Pre-existing Duty Rule with the current solution of UCC section 2-209(1) and examines the changes recently proposed to revise the provision. Part VI summarizes and analyzes decisional law. Part VII formulates language for a sequential test of good faith modeled on the test for assurance of performance under UCC section 2-609 and considers reasons for using this section as a model for the modification provision. This part also assesses the sequential approach in light of typical defenses and representative hypothetical cases. The author concludes by urging the National Conference of Commissioners on Uniform State Laws and states to evaluate the sequential approach and consider whether it would facilitate the work of the courts by providing a more consistent and balanced test for enforcement of modified sales contracts.

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Contracts Commons