contract supplementation Flashcards
why would “implied in law” terms be added to the contract?
uphold practices of good faith and fair dealing, avoiding illusory promises, preserving fruits of contract and party intent
what are three examples of implied-in-law terms that would be added?
reasonable efforts, reasonable notice of termination, reasonable satisfaction clause
why would “reasonable efforts” be added as an implied-in-law term?
to avoid illusory promises - contract would be worthless to both parties if they did not exert reasonable efforts to perform, even if no specific level of performance was indicated
why would “reasonable notice” be added as an implied-in-law term?
under good faith and fair dealing, notice of termination limits damage that you might cause to the other party - need a reasonable opportunity to recoup your investment
what is the objective standard of reasonable satisfaction as an implied-in-law clause?
reasonable person would find it satisfactory - used where objectivity is easier to find (easily measured)
why would a “reasonable satisfaction clause” be imposed as an implied-in-law term?
satisfaction clause may be viewed as an illusory clause if no specifications are given re: satisfaction
what is the subjective standard of reasonable satisfaction as it relates to an implied-in-law term?
personal taste or asthetic quality (do you like the portrait?)
what are the two main types of warranties?
express and implied
what is an express warranty?
created by the seller with specific terms
how is an express warranty created by the seller?
(1) affirmation of fact or promise made by seller, (2) description of the goods, (3) sample/model
what are the two types of implied warranties imposed by law?
warranties of merchantability and fitness for a particular purpose
when is a warranty of merchantability implied?
if the seller is a merchant with respect to goods of that kind
define merchantability
goods must (1) pass without objection in the trade, (2) be of fair, average quality, fit for the ordinary purpose for which such goods are used, (3) conform to the promises or affirmations of fact made on the container or label
when is a Warrany of Fitness for Particular Purpose imposed?
when the seller, at the time of contracting, has reason to know any particular purpose for which the goods are required, and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods
how are disclaimers used?
warranties can be disclaimed if disclaimer language is conspicuous and specific as to what is being disclaimed
