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Friday, January 14, 2005

Passover is "service," not "good" for UCC purposes

Passover_food A catered ten-day "Passover Retreat" is a "service," not a "sale of goods," according to a New York judge, as reported via Law.com in the New York Law Journal.

In the case, the defendant allegedly agreed to pay $24,000 for 15 of his family members to spend 10 days at Passover at a country club.  He claimed he never entered into the deal, and his family did not go.  There was no written agreement, but the caterer sued.  The defendant moved to dismiss on statute of frauds grounds under UCC § 2-201.

New York applies to "predominant purpose" test to mixed transactions, and the defendant claimed that the "very essence" of the contract was the food—"the presentation and enjoyment of abundant, frequent and high quality Kosher for Passover cuisine."

The essential religious obligation during this eight day period—and the principal reason why people attend events similar to the Program sponsored by plaintiff—is in order to facilitate their fulfillment of the requirement to eat only food which is prepared in strict accordance with the mandate of Jewish law for Passover.

The trial court judge, however, saw a lot more than eating going on.

The activities possible include tennis, racquetball, swimming, Swedish massage, "'make over face lift show," "'trivia time," aerobics, bingo, ice skating, dancing, "showtime," "power walk," arts and crafts, day camp, ping-pong, Yiddish theater, board games, horse racing, horseback riding, wine tasting, and indoor baci—and that is only through Wednesday.

He had no trouble finding that the "essence" of the transaction was a "family communal experience," and therefore the UCC statute of frauds did not apply.

http://lawprofessors.typepad.com/contractsprof_blog/2005/01/passover_is_ser.html

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