Contracts (Has the contract been performed?) Flashcards
What are the four topics to analyze if a contract has been performed?
Pizza With Crawling Escargot
Parol Evidence
Warrantoes
Conditions
Excuse of performance obligations
What is the rationale behind the PER
If previous convos during the formation process were meant to be in the K they would have been.
The purpose is to prevent the introduction of other terms that didn’t make the cut.
What is the intuition (or common sense) behind the parole evidence rule?
If the parties have reduced their K to a comprehensive writing related to this agreement, THEN, earlier statements or writings related to this agreement are not part of the deal under the Parole Evidence Rule. (PER)
Does the PER apply to a LATER written or verbal statement about the deal?
No, that would be a modification. PER applies to previous verbal and written statements that did not make it to the integrated (final) written agreement.
PER cannot serve as a bar to prevent the introduction EVIDENCE of terms that were mentioned AFTER the signing because they could be evidence of modification of contract. PER does not apply. Evidence will enter. It doesn’t mean the presenter of the evidence will get what he wants but court can admit the evidence.
How to analyze PER?
Gateway question for the PER is whether the parties have created what they have deemed and integrated writing.
What is the difference between complete and partial integration
Complete integration- the K expresses all terms of the agreement. (comprehensive document)
Partial integration- there is a final writing, but some terms are not included.
How can a court determine if the writing is fully integrated?
Look for a merger clause. “this is the entire agreement between the parties.”
Courts may also ask whether, under the circumstances, an extrinsic term of the agreement would naturally be omitted from the writing.
How to apply PER in the UCC world?
PER in UCC is more forgiving. It presumes that a writing is, at most, only a partial integration- unless the parties would have certainly a disputed term in the writing.
When the PER DOES NOT apply?
Even if the writing is completely integrated. PER will not bar evidence concerning:
1) relevant to contract defenses (duress, mistake, etc)
2) evidence of a second separate deal
3) prior communication that is designed to interpret an ambiguous term.
What is the difference betwen PER and SOF?
If the question does NOT have a signed writing, think SOF
If the question does NOT have a signed writing, along with an earlier discussion of the deal, think of it as a PER problem
What is a warranty?
Warranty is a promise about some term of the K. It shifts the risk to the person who is making the promise.
I.E if I buy something and the seller gives me a warranty and the thing malfunctions, the buyer is protected.
Can you disclaim a warranty?
Yes. Sell as is
What is an express warranty?
UCC world: A promise that affirms or describes the goods and it’s part of the basis of the bargain is an express warranty
except: If it’s a seller’s opinion
What is the effect of the use of a sample or model?
USE of a sample or model creates an express warranty that the goods sold will be like the sample.
What is the implied warranty of merchantability
This warranty is triggered ONLY when the seller is a merchant dealing in the goods at issue. i.e, the merchant needs to be selling the goods he usually sells
