Ambiguity Flashcards
Cannons of Construction
Basic rules applied by the court to aid in interpretation
Name Some Cannons of Construction
1) Expression Unius is when the expression of one thing is the exclusion of another.
2) Ejudem Generis is where the specific words within the contract outweighs the general words.
3) What is not prohibited is permitted. (Noelle pione liene– The punishment of the law).
4) Where the provisions within the contract are read as to render nothing meaningless.
Factors to consider as to whether a writing is fully integrated
- Length and Detail of the Writing
- Formality of the writing
- Inclusion of a merger clause
- Negotiations
- Surrounding Circumstances
What happens if there is not integration?
Parole Evidence rule is not applicable and Extrinsic Evidence may be offered to prove the terms of the agreement.
UCC-Parole Evidence Rule
Usage of Trade, Course of Dealings, and Course of Performance may be drawn upon to “explain or supplement” the written contract.
Used to determine true intent, and but if inconsistent with the express terms of the contract, then express terms control.
The issues is whether there is a Condition?
An event not certain to occur, but that must occur for the performance of the contract to become due, unless excused or waived.
1. subject to
2. upon condition
3. if
4. Unless
5. provided
6. When
7. After.
What are the steps when considering promise or condition?
- Is it a promise or condition based on objective theory.
- Is the condition satisfied
- Is non-occurrence excused
- Was non-occurrence waived.
- Non -occurrence modified by both parties.
Was non-concurrence excused?
Material part of the exchange
Hindered or prevented satisfaction of the condition
Potential disproportionate forfeiture
Whether ambiguity should be resolved against one party or another.
- Considered whether the party knew or had reason to know the meaning
(2) Consider whether the courts would construe the meaning against the drafter.
(3) Is the ambiguity such that it negates consent. If there is such ambiguity that there is not a valid offer or acceptance it negates mutual assent.
The issue is whether parole evidence can be admitted to clear up ambiguities within the contract.
Parole evidence is when extrinsic evidence of the parties prior or contemporaneous agreement cannot be admitted to fix the ambiguity. A contract can be either partially integrated or completely integrated. In an partially integrated contract parties intended it to be the final expression of at least one term, but did not intend it to be a final expression of all terms of the agreement. A partially integrated contract has missing elements from the contract and extrinsic evidence of the parties prior or contemporaneous agreements will be admitted to supplement the ambiguous terms but not to contradict the terms. Completely integrated is when there are no missing terms/elements from the contract and extrinsic evidence of the parties prior or contemporaneous agreement cannot be admitted to determine what the parties actually meant. The factors that the court would look at in order to
determine whether the contract was completely integrated or not are as follows: 1) the extent of the parties prior negotiations, 2) business sophistication, 3) whether the parties were represented, and 4) was the
contract susceptible to additional terms. The court would also look to see if the employment contract had a merger clause which is the expression deeming that it is the final contract of the parties.
The issue is whether there is an exception that would allow parties to possibly bring in extrinsic evidence of a prior or contemporaneous agreement.
An exception to the parole evidence rule, which may allow for extrinsic evidence could exists when there is (1) a condition, (2) ambiguity within the contract, (3) defense such as fraud, mistake, or misrepresentation. A condition is an event or occurrence that must occur for the other party to fulfill their duty or obligation. There is ambiguity when the parties have reasonable but different interpretation regarding the meaning of a element of the contract. A mistake is an error in a material fact. Misrepresentation is a deliberate error in material fact that was relied upon by the party when entering into the agreement. I have to re-check the definition of fraud and edit this entry.
Whether in a UCC case ambiguity can be resolved by extrinsic evidence?
The court would look at three factors to see if parole evidence can be admitted. (1) course of Dealings, (2) Course of performance, (3) usage of trade. Course of dealings are prior negotiations between parties, prior communications/agreements between parties, and letter or documents between the parties. Course of Performance is what the parties did prior and they di that on every occasion then the same way should stand. Usage of Trade is when courts will look at what other businesses within the sector do. An experts testimony can be used to clarify industry practice.
Whether there is a valid Warranty that applies in this case?
A warranty is an affirmation or promise that something will perform or be done properly. There are two types of warranties express warranty and implied warranty. An express warranty is an act of affirmation or promise that is explicitly stated or spoken will perform or be done properly. An implied warranty is an act of affirmation or promise that is not explicitly stated but is implied that something will perform or be done properly. There are four types of implied warranties that can be focused on: 1) Merchantability; 2) Habitability, 3) Fitness for a particular purpose, and 4) Title.
Whether there is a valid Warranty that applies in this case?
A warranty is an affirmation or promise that something will perform or be done properly. There are two types of warranties express warranty and implied warranty. An express warranty is an act of affirmation or promise that is explicitly stated or spoken will perform or be done properly. An implied warranty is an act of affirmation or promise that is not explicitly stated but is implied that something will perform or be done properly. There are four types of implied warranties that can be focused on: 1) Merchantability; 2) Habitability, 3) Fitness for a particular purpose, and 4) Title. Warranty of Merchantability is when the seller sales something to the buyer with the buyer’s expectation that the thing that was sold to them would work. Warranty of habitability is when the premises must be suitable and habitable living environment and/or space. Fitness for a particular purpose warranty is when the seller knows of the buyers particular purpose and their expertise is why the buyer bought such a specific thing for a specific purpose. Warranty of title is when someone cannot pass a title to something unless they particularly own the title of the thing they are to pass. Lastly, you must consider whether there is a disclaimer such as “As is or without fault” Where there is a disclaimer, the court may consider it implications.
The issue is whether there is a condition, promise, or a promissory condition, and was it met.
A condition is an event or occurrence that must occur for the other party to fulfill their duty or obligation. A promissory condition is a promise to do something in order to get something in return. A promise is a manifestation of intent to act or refrain from acting in a specific way. To determine whether the condition was met or not there has to be an event or occurrence in order for the other party to get something in return and both parties must fulfill their duties to the contract. Should the condition not be met, the other party does not have to perform.
