Determing the Terms of a K Flashcards
Parol Evidence Rule
Excludes evidence of prior or contemporaenous agreements contradicting the final writing.
If “oral final agreement,” parol evidence rule not triggered.
PER Exceptions
1) Partially Integrated Writing
2) Defense Against Formation
3) Explain a vague term
4) Correct Clerical Error (typo)
5) evidence of a condition precedent
Partially Integrated Writing Exception
If the integration is partial, the writing may be SUPPLEMENTED (but not contradicted) by proving consistent additional terms.
UCC and Partially Integrated Writing
THe UCC presumes all writings are partial integrations.
Merger Clauses
Recites that the agreement is the complete agreement. Usually makes it a complete integration.
Defense against formation exception
Parol evidence can be used to establish a defense to contract formation (such as misrepresentation)
Parol Evidence Form
Can be oral or written
Parol evidence after the writing
Doesn’t apply. PER only applies to evidence before the writing.
Modifcation rules apply.
Conduct as a source of terms and types
Conduct can supply terms.
(in order of power)
1) Course of performance
2) Course of Dealing
3) Trade usage or custom
Course of performance
Parties conduct under prior installments of CURRENT contract
Course of dealing
Parties’ conduct in PRIOR contract
Trade usage
Industry norms parties are aware of
Express warranties (UCC)
Any affirmation of fact made by the seller to the buyer, description of goods, and sample or model creates an express warranty if it is part of the BASIS OF THE BARGAIN.
Puffery and opinion is not an express warranty
Implied Warranty of Merchantibility (UCC)
Implied guarantee that the goods are fits for their ordinary, forseeable purpose.
MUST BE FROM A MERCHANT SELLER who regularly sells those type of goods
Implied Warranty of Fitness for a Particular Purpose (UCC)
When it applies:
1) Buyer comes in with special purpose
2) Seller knows of special purpose
3) Seller picks out goods fit for buyer’s special purpose
