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I thank the conference organizers and the law review for giving me the opportunity to vent some of my frustrations with the Uniform Commercial Code (UCC). I have expressed my concerns with the Code’s overreliance on “custom and usage” elsewhere, and will not pursue that further here. Nor will I bemoan the Code’s invocation of good faith to undo the parties’ balancing of flexibility and reliance. I will confine my discussion to contract remedies. But I have to begin by noting one section I simply do not understand. Why on earth would the Code drafters in § 2–718(2)(b) have required restitution of nonrefundable deposits in excess of $500? A standard that undid “unreasonable” deposits might conceivably make some sense, but a price fixed in 1965 (when the price level has increased more than 500%) is daft.


Contracts | Law | Law and Economics