CONTRACTS Flashcards
UCC parole evidence rule; course of dealing
Under the UCC parole evidence rule; course of dealing evidence is admissible even if the parties intended the agreement to be complete and exclusive.
LATER ORAL CONDITION to PER?
Evidence may be admitted to prove a defense, mistake, failure of consideration, failure of a condition, or to prove that the contract is void or voidable.
Mailbox rule’s exception - rejections (VIQ)
The mailbox rule states that a timely sent acceptance is effective when sent, not upon receipt.
1) However, if a communication is sent rejecting the offer, and a later communication is sent accepting the contract, the mailbox rule does not apply, and the first one to be received by the offeror prevails.
2) if an offeree sends an acceptance and later a rejection, the acceptance will control even if the rejection was received first, unless the offeror detrimentally relies on the rejection
warranty of fitness for a particular purpose.
A warranty that the goods are fit for a particular purpose may be disclaimed by a conspicuous writing. Such a writing need not refer to this warranty by name.
implied-in-law contract (“quasi-contract”)
(note the difference between implied-in-law and implied-in-fact contracts)
-An implied-in-fact contract is created only when conduct indicates assent or agreement
existence of an implied-in-law contract (“quasi-contract”) when one party confers a benefit on another and has a reasonable expectation of compensation. Otherwise, the benefited party would be unjustly enriched. Such situations occur when: (i) the plaintiff has conferred a “measurable benefit” on the defendant; (ii) the plaintiff acted without gratuitous intent; and (iii) it would be unfair to let the defendant retain the benefit because either the defendant had an opportunity to decline the benefit but knowingly accepted it, or the plaintiff had a reasonable excuse for not giving the defendant such opportunity, usually because of an emergency.
adequate assurance
A failure to provide adequate assurances for reasonable grounds for insecurity within a reasonable time (max 30 days) constitutes repudiation. Demand for assurances must be in writing
PER
Parol evidence rule prevents a party to a written contract from presenting other evidence that contradicts the terms of the contract as written. If a document is determined not to be “integrated,” the parol evidence rule may not apply. When documents are only partially integrated, the parties are permitted to present extrinsic evidence only as long as the evidence is consistent with the writing
risk of loss - UCC
The UCC provides that a merchant seller generally retains the risk of loss in the absence of a contract term to the contrary until the buyer receives the goods. However, if the buyer is in breach of the contract, the risk of loss passes to the buyer to the extent of any deficiency in the seller’s insurance coverage
Liquidated damage
Liquidated damages are damages stipulated by the parties in the contract as a reasonable estimation of actual damages to be recovered in the event of a breach without proof of actual loss. When the contract contains a liquidated-damages clause, the party seeking to repudiate that clause must show that the agreed-to damage is so exorbitant - not reasonable as to be in the nature of a penalty.
Intended beneficiaries right to sue
An intended beneficiary may sue a promisor to enforce the contract once her rights have vested. The rights of an intended beneficiary vest when the beneficiary (i) detrimentally or materially relies on the rights created; (ii) manifests assent to the contract at one of the party’s request; or (iii) files a lawsuit to enforce the contract. Here, none of these three vesting events occurred before the rescission of the contract
UCC- right to cure a defective tender
A seller has the right to cure a defective tender if (i) the time for performance under the contract has not yet lapsed, or (ii) the seller had reasonable grounds to believe the buyer would accept the goods despite the nonconformity
no Assignment clause
Most contracts can be assigned. Even if the contract by its terms prohibits assignment, a party retains the power to assign, although an assignment operates as a breach of the contract.
UCC - SOF exception
If both parties are merchants and a party sends a confirmatory letter/memo that meets the SOF to the other party, and the other party knowingly receives the memo and does not object in writing within 10 days, the k is enforceable against the receiving party, even though the receiving party did not sign the memo.
