CONTRACTS WITH OPEN OR MISSING TERMS UNDER THE UNIFORM COMMERCIAL CODE AND THE COMMON LAW: A PROPOSAL FOR UNIFICATION

Abstract

Historically, all contracts with open or missing terms were found void for indefiniteness unless there was partial performance. The Uniform Com? mercial Code (U.C.C. or Code) departedfrom the common law and permitted the enforcement of sale-ofgoods contracts with open or missing terms, pro? vided that certain requirements were met. Today, the treatment ofopenand missing-term contracts in the service context is inconsistent: Some jurisdic? tions apply the traditional common-law doctrine to hold such contracts inva? lid for indefiniteness, while others apply the U.C.C. analysis to hold such contracts enforceable. This Note considers the arguments supporting both the traditional common-law rule and modern U. C. C. approach. It argues that in light of modern commercial reality, the courts should apply the U. C. C. analysis to both sale-of-goods and service contracts. This unified approach would eliminate confusion in the current state oflaw and promote flexibility in commercial transactions for both goods and services.