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Bar Contracts > 4) Gap-Fillers, Interpretation, Parole Evidence Rule > Flashcards

4) Gap-Fillers, Interpretation, Parole Evidence Rule Flashcards

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1
Q

UCC implied warranties: result

A

default rule – applies unless conditions met to negate

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2
Q

UCC implied warranties: kinds

A

1) title
2) merchantability
3) fitness for particular purpose

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3
Q

UCC implied warranty of TITLE: def

A

implied warranty of:

1) good title to the goods
2) rightful transfer
3) no liens/etc

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4
Q

UCC implied warranty of TITLE: how to negate

A

1) specific language OR

2) circs that give buyer reason to suspect seller dnh unencumbered title

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5
Q

UCC implied warranty of MERCHANTABILITY: def

A

implied warranty that goods fit for ordinary purpose.

ONLY APPLIES IF SELLER IS MERCHANT

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6
Q

UCC implied warranty of TITLE: when apply?

A

always, unless negated

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7
Q

UCC implied warranty of merchantability: when apply?

A

only if seller is merchant (and not negated)

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8
Q

UCC implied warranty of MERCHANTABILITY: how to negate

A

1) specifically say “merchantability.” If in writing must be conspicuous, OR
2) other lang or circs that would be reasonably understood by buyer to exclude

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9
Q

UCC implied warranty of MERCHANTABILITY: exs of lang or circs that would be reasonably understood by buyer to exclude the warranty

A

1) “as is”

2) patent defects

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10
Q

UCC implied warranty of FITNESS FOR PARTICULAR PURPOSE: def

A

goods being sold are fit for particular purpose (not ordinary purpose) that buyer wants to use them for

(conditions)

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11
Q

UCC implied warranty of FITNESS FOR PARTICULAR PURPOSE: when apply?

A

at time of k, seller has reason to know:

1) the particular purpose AND
2) buyer is relying on seller’s expertise to select reasonable goods

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12
Q

UCC implied warranty of FITNESS FOR PARTICULAR PURPOSE: how to negate?

A

1) disclaimer is written, clear, and conspicuous OR

2) goods have easily detectable patent defects

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13
Q

UCC express warranty: def

A

warranty that goods will conform to some standard, arises whenever seller expressly makes it part of basis of the bargain

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14
Q

UCC express warranty: ways to make one

A

1) affirmation of promise or fact
2) description of the goods
3) sample/model

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15
Q

UCC express warranty: exception

A

sales puffery not a warranty! (is st vague, or a falsifiable fact?)

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16
Q

UCC default rules for missing terms: can still have a k if any of these terms are missing

A

1) price
2) time
3) place of delivery

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17
Q

UCC default rule for missing term: price. what’s filled in?

A

reasonable price (market value) at time established by k for delivery

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18
Q

UCC default rule for missing term: time. what’s filled in?

A

reasonable time

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19
Q

UCC default rule for missing term: place of delivery. what’s filled in?

A

seller’s place of business

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20
Q

CL default rule for missing price term

A

if a SERVICES K –> reasonable value for services rendered

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21
Q

good faith and fair dealing: UCC or CL?

A

both!

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22
Q

GF: result

A

can be source of gap filling re. performance, enforcement

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23
Q

GF: def

A

1) honesty in fact AND

2) observance of reasonable commercial standards of fair dealing in the trade

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24
Q

good faith obligation triggered when:

A 
terms of k leave critical term:
1) price
2) satisfaction clause
3) quantity
open to the determination of ONE PARTY
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25
Q

satisfaction clause: def

A

k says performance only complete when recipient is satisfied

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26
Q

satisfaction clause: is it illusory?

A

no –> doesn’t trigger the “if I feel like it” bc of addition of GF requirement

27
Q

are open quantity terms allowed?

A

UCC yes, CL no

28
Q

open quantity term: 2 kinds

A

1) output k

2) requirements k

29
Q

output k: def

A

buyer agrees to buy all, or a %, of seller’s output of a particular good

30
Q

requirements k: def

A

seller agrees to supply buyer w all or % of buyer’s requirements for particular good

31
Q

UCC open quantity term: GF requirement

A

the party that can determine the quantity (seller who said would sell ALL I make or buyer who said give me ALL I need):

1) must make determination in GF AND
2) no unreasonably disproportionate demand or tender, IF there was an estimate or past course of dealing

32
Q

UCC open quantity term “no unreasonably disproportionate” applies if:

A

1) stated estimate OR

2) past course of dealing

33
Q

interpreting ambiguous language: consider these doctrines

A

1) objective vs subjective

2) contra preferenem

34
Q

objective vs subjective: def

A

in interpreting ambiguous k, objective language trumps subjective meaning

35
Q

objective vs subjective: exception

A

if 1 party has reason to know of other party’s subjective understanding, then 1st party is bound by that meaning

36
Q

contra preferenum: def

A

in interpreting ambiguous k, construe the ambiguous term against the drafter

37
Q

contra preferenum: scope

A

–applies to all ks, but courts may not use this rule in every case

38
Q

interpreting ambiguities, filling gaps: consider these possible sources of extrinsic evidence

A

1) trade usage
2) course of dealing
3) course of performance
4) parol evidence rule (re pre-k coms btwn the 2 parties)

39
Q

extrinsic evidence: def

A

outside the 4 corners of the k

40
Q

admissible to use extrinsic evidence for:

A

1) interpret ambiguities
2) fill gaps
3) UCC ONLY: add additional terms (even if completely integrated agreement)

41
Q

trade usage (def)

A

practice so regularly observed in a place/trade that it justifies expectation that it will be observed re this transaction (what all members of the trade do)

42
Q

course of dealing (def)

A

pattern of conduct in previous transactions btwn these parties that is fairly regarded as common basis of understanding for subsequent conduct (same parties, previous k)

43
Q

course of performance (def)

A

multiple occasions for performance under this k and other party, knowing of nature of performance and had opportunity to object, accepts the performance (same parties, same k)

44
Q

inadmissible use of extrinsic evidence

A

contradict express terms of the k

45
Q

ranking of kinds of extrinsic evidence

A

if in conflict, priority =

1) course of performance
2) course of dealing
3) usage of trade

46
Q

parol evidence rule: scope

A

applies to admissibility of:

1) oral or documentary evidence
2) of negotiations or other communications
3) between the parties
4) BEFORE or CONTEMPORANEOUS w the (written) k

47
Q

PER: integration: kinds

A

1) partial
2) complete
3) (not at all)

48
Q

PER: partial integration: def

A

terms in the k are INTENDED as final expression OF THOSE TERMS

49
Q

PER: complete integration: def

A

the k is intended to be complete, exclusive statement of all terms

50
Q

PER: how to know if partial or complete integration? majority rule

A

merger clause = complete integration

51
Q

merger clause: def

A

says that the writing is complete, entire agreement

52
Q

PER: how to know if partial or complete integration? minority rule

A

merger clause is persuasive but also consider other evidence to decide whether parties intended the k to bar the evidence now proposed

53
Q

PER: rule re. explaining or interpreting terms of written k

A

parol evidence ALWAYS admissible for this (majority)

54
Q

PER: rule re. supplementing terms of written k (add a term)

A

parol evidence admissible for this purpose UNLESS k is completely integrated

55
Q

if agreement is completely integrated, can external non-PER evidence (trade/course d / course p) supplement it?

A

UCC: yes
CL: no

56
Q

PER: rule re. contradicting terms of written k

A

parole evidence NOT admissible for this (unless not integrated re. that term)

57
Q

PER: rule re. using PER to decide if it’s integrated or not

A

always ok use the PER for this

58
Q

PER Exceptions (times PER does not apply)

A

1) subsequent agreements
2) collateral agreements
3) attack on validity of written agreement

59
Q

PER exception: subsequent agreement: rationale

A

the whole point of PER is it’s about prior / contemporaneous evidence –> this is outside the def

60
Q

PER exception: collateral agreement: def

A

PER does not affect agreements that are entirely distinct from the written k at issue (even if same transaction–car sale vs parking)

61
Q

PER exception: attack on validity of written agreement: rationale

A

if you’re arguing k not enforceable for one of these reasons, the evidence can come in for your argument. (PER requires a valid written agreement, unlike here)

62
Q

PER exception: attack on validity of written agreement: kinds

A

1) failure of oral condition precedent to agreement
2) mistake or duress
3) fraud
4) reformation

63
Q

PER exception: failure of oral condition precedent to agreement

A

tricky bc normally prior written stuff falls under PER. But PER DOES NOT APPLY and can’t exclude evidence if it was a condition precedent, such that there was no agreement at all if not met

64
Q

reformation: steps

A

A P trying to get reformation must show:

1) antecedent valid agreement
2) AA is incorretly reflected in the writing bc of mistake or fraud, AND
3) proof is established by clear/convincing evidence

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