Final Countdown Flashcards
What is a mnemonic to remember the steps of a contract analysis?
Casey Took a Poop During Recess
Contract
Terms
Performance
Defenses
Remedies
What is the Statute of Frauds? (Provided in UCC 2-201)
Contracts fall under the statute of frauds when they are for goods for $500 or more. Because this is a contract for goods over $500, the statue of frauds applies. To be enforceable, any contract falling within the Statute of Frauds must be in writing and signed by the party against whom enforcement is sought. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
What are the exceptions to the Statute of Frauds? (Provided in UCC 2-201)
There are three exceptions that don’t need writing: Specially manufactured goods (where there has been a substantial progress in the manufacture), OR if one of the parties admits there was a contract in court, OR receipt of payment or receipt of goods.
What is the policy purpose of the Statue of Frauds? (KentLaw)
The cautionary function: The idea here is that making parties write down their agreement makes the parties take the agreement more seriously, and makes the approach the whole matter less hastily. It makes the parties more carefully about the contract. (Oh shit I’m signing a contract)
and
The evidentiary function: the other idea is that the statute of frauds is supposed to prevent fraud. Without a written contract you could come into court and lie about there being a contract or about the terms of the contract. (Oh shit now there’s evidence I signed a contract).
What is a mnemonic for the Statute of Frauds exceptions? (Piper)
SWAMP
S – Contracts for SPECIALLY manufactured goods
W – WAIVER
A – Judicial ADMISSION of contract
M – “MERCHANT MEMORANDUM”
P – PART PERFORMANCE
What is the Parol Evidence Rule? (Provided in UCC 2-202)
The parol evidence rule discharges any prior (or contemporaneous) agreements that are inconsistent with the integrated terms of a final, written agreement.
Put differently, under the parol evidence rule, the court may not admit extrinsic evidence of prior agreements, if the purpose is to supplement or contradict the terms of a fully integrated written agreement.
When is a writing completely integrated? (Chinen Approved)
A writing is completely integrated if the parties intend the writing to be the final and exclusive expression of their agreement. If a writing is completely integrated, evidence of terms within the scope of the writing are excluded and evidence of terms outside the scope of the writing are included.
When is a writing partially integrated? (Chinen Approved)
An agreement is integrated when the parties intended the writing to be the final expression of one or more terms of their agreement. If a writing is integrated, evidence of consistent contract terms is admitted and evidence of inconsistent terms is excluded.
What is the policy purpose behind the Parol Evidence Rule? (Q) (LII)
The rationale behind the Parol Evidence Rule is that the parties to an agreement will include all of their terms in a written contract, so any terms that are not in the written contract were not intended to be part of the final agreement.
The rationale behind the rule is to deter untruthful attacks on contracts.
To simplify the administration of the resulting contract and to facilitate the resolution of possible disputes by excluding from the scope of their agreement those matters that were raised and dropped or even agreed upon and superseded during the negotiations.
What’s a mnemonic for remembering a PER analysis? (VB)
WIE
W- Is there a WRITING?
I - Is the writing INTEGRATED?
E - Are there any EXCEPTIONS?
What is a mnemonic for what permits parol evidence? (VB)
RIT
RECISION
INTEGRATION or complete integration
Interpret ambiguous TERMS
What is an express warranty?
An express warranty is a statement or representation made by a seller that goods meet certain standards of quality, safety, and performance.
How are express warranties created? (Provided in UCC 2-313)
Express warranties are created by any fact/promise by a seller that becomes part of the bargain OR becomes part of the basis for a bargain.
What is the policy purpose behind representations and warranties?
Allows the purchaser to rely on the seller without independently verifying information. EFFICIENCY. Also, the seller is in the best position to have the information.
What does it mean that express warranties are SAD? (Piper)
Express warranties are SAD:
S – SAMPLE or model, which is the basis of the bargain
A – Written or oral AFFIRMATION of fact or promise made by the seller relating to the goods
D – DESCRIPTION of the goods in advertisements, brochures, or catalogs
What is the implied warranty of merchantability? (Themis) (Provided in UCC 2-314)
Goods the merchant normally sells for their ordinary purpose - can be disclaimed by very conspicuous language (either using merchantability or as is).
What is the implied warranty for fitness for a particular purpose? (Themis) (Crunchtime) (Provided in UCC 2-315)
Buyer relies on the seller’s expertise to select proper goods.
Elements are (1) Seller had reason to know buyer’s purpose (2) seller had reason to know buyer was relying on seller’s skill (3) buyer did in fact rely
PSR
What is a condition? (Q)
A condition is an uncertain event that must occur before a party can be required to perform.
What is an express condition? (Q)
An express condition is one to which the parties explicitly agree.
What are the excuses for express conditions?
- Forfeiture
- Waiver
- Estoppel
What is an implied (constructive) condition? (Q)
An implied condition is a condition implied by law to avoid injustice. If a requirement of performance in a contract is ambiguous as to the parties’ intent, it may be interpreted as an implied condition rather than as an express condition.
How can an obligor waive a condition? (Q)
An obligor can waive a condition by making an express statement to that effect or by accepting performance despite knowing of the nonoccurrence. However, a waiver doesn’t excuse nonoccurrence if the condition is a material part of the contract, that is, if nonoccurrence would deprive the obligor of the benefit of the bargain.
What are the elements to prove disproportionate forfeiture? (Q)
First, the condition is not a material part of the contract;
Second, the obligee has substantially relied on the expectation of the parties’ exchange; and
Third, the obligee’s loss if the condition were enforced would be much greater than the obligor’s loss if the nonoccurrence were excused.
What is material breach?
A material breach goes to the essential parts of the contract, and is so substantial a failure to perform that the nonbreaching party did not receive the basic value of the contract. If a breach is material, then the nonbreaching party’s performance is excused.
