Gap Fillers, Interpretation and PER

Question 1

What are the 3 Implied Warranties under the UCC?

Answer 1

1. Warranty of Title and against Infringement
2. Warranty of Merchantibility
3. Warranty of Fitness for a particular purpose

Question 2

How can the 3 Implied Warranties under the UCC be modified or excluded?

Answer 2

1. Warranty of Title and against Infringement- specific language or circumstances that gives buyer reason to know
2. Warranty of Merchantibility- language mentioning merchantibility, must conspicuous if in writing
3. Warranty of Fitness for a particular purpose- language in conspicuous writing

Question 3

Implied Warranties dont apply in 3 situations:

Answer 3

1. “as is” language
2. buyer has examined goods before entering into K and defects should have been apparent
3. course of dealing, course of performance, or trade usage that signals the contrary

Question 4

What are express warranties under the UCC?

Answer 4

1. any affirmation of fact or promise that relates to the goods
2. any description of the goods
3. any sample or model that is part of the basis of the bargain

***Doesnt require specific guarantee language, but doesnt include mere puffery

Question 5

What is the measure of damages for breach of warranty?

Answer 5

the diff between the value at the time of the acceptance and the value they would have had if they had been warranted

Question 6

What are the default gap filling rules under the UCC?

Answer 6

1. price- reasonable price at the time
2. time- reasonable time
3. place of delivery- sellers place of business unless otherwise agreed

Question 7

What are the default rules for gap filling under employment Ks?

Answer 7

1. price- quantum meruit
2. duration- at will UNLESS there are accompanying oral or written assurances of job security; if employee handbook says at will and it contradicts oral assurances, the jury must decide

Question 8

UCC and Restatement impose an obligation of good faith in the performance and enforcement of Ks w/ regards to:

Answer 8

1. open price terms
2. satisfaction terms
3. output and requirement Ks
4. UCC prohibits unreasonably disproportionate demand or tender if there was a state estimate between 2 parties OR, any previously comparable output or requirement quantities

Question 9

The objective meaning of a term in a K prevails over any subjective meanings unless:

Answer 9

1- the other party knows or has reason to know of the 1st party’s subjective understanding; OR

2- if both parties share the same mutual subjective understanding

Question 10

Contra proferentem:

Answer 10

an ambiguous term is interpreted against the party who drafted it

Question 11

doctrine of reasonable expectations:

Answer 11

unambiguous terms may be interpreted against the drafting party if they conflict w/ the reasonable expectations of the other party

***unreasonable boilerplate terms are unenforceable

Question 12

What type of evidence may be used to supplement express terms of give meaning to ambiguous terms under both UCC and Common Law?

Answer 12

1- trade usage- custom

2- course of performance- current performance

3- course of dealing- history

***this evidence may not be used to contradict the express terms of a K, however course of performance may be available to establish waiver or modification of an express term

Question 13

In the event of a conflict between course of performance and trade usage or course of dealing, which wins?

Answer 13

Course of performance

Question 14

The Parol Evidence Rule governs…

Answer 14

1. oral and documentary evidence of negotiations and other communications between the parties; AND
2. communications that took place prior to or contemporaneously with the execution of a written K

Question 15

What is the Parol Evidence Analysis?

Answer 15

1. what is the purpose for which the evidence is being introduced?
2. does the evidence relate to a term or K which is integrated?

Question 16

What is full/partial integration?

Answer 16

When a particular K is fully integrated, it means that the terms contained w/in the K are intended to be the final discussion of the parties as to those specific terms

***parol evidence is admissible

Question 17

What is complete integration?

Answer 17

When a particular K is completely integrated, the parties intend the K to represent a complete and exclusive statement of all the terms

***bars any parol evidence

Question 18

How do you determine full integration?

Answer 18

1- the thoroughness and specificity of the written instrument in connection with the terms at issue which are strong indicators that the parties intended the writing to represent their final agreement

2- parol and other extrinsic evidence is admissibe

Question 19

How do you determine full integration?

Answer 19

1. the presence of a merge clause
2. the detailedness of the agreement and the length of the agreement

***may be conclusive or persuasive evidence

Question 20

What are 3 main purposes for which parole evidence is often used for? (ComLaw)

Answer 20

1- to explain or interpret the terms: #majority/always admissible
#minority- threshold showing patently ambiguous

2- to supplement the terms: admissible unless the K is completely integrated

3- to contradict the terms of the written K: admissible unless the term(s) are fully integrated

Question 21

What are 3 main purposes for which parole evidence is often used for? (UCC)

Answer 21

1- to explain or interpret the terms of the written K: N/A

2- to supplement the terms of the written K: usage of trade, course of of dealing, and course of performance admissible in sale of goods cases

3- to contradict the terms of the written K: course of dealing or course of performance admissible in sale of goods cases to qualify the meaning of an integrated term

Question 22

When does the PER not apply?

Answer 22

1- subsequent agreements

2- collateral agreements

3- attacks on the validity of the written agreement
#failure of an oral condition precedent, absence of consideration; mistake or duress; fraud; reformation

Question 23

For the Plaintiff to be entitled to reformation, he must show 3 things:

Answer 23

1- there was an antecedent agreement

2- the antecedent agreement was incorrectly reflected in the writing (mistake)

3- proof of these elements is established by clear and convincing evidence