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Contracts > If there is an enforceable deal, what are its terms? > Flashcards

If there is an enforceable deal, what are its terms? Flashcards

1
Q

What is the effect of the Parol Evidence Rule on fully integrated contracts?

A

Precludes evidence of prior and contemporaneous agreements and negotiations that add to or contradict writing

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2
Q

What the effect of the Parol Evidence Rule on partially integrated contracts if evidence is inconsistent with written terms?

A

Evidence is inadmissible

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3
Q

What is the effect of the Parol Evidence Rule on partially integrated contracts if evidence is of consistent, additional terms?

A

Evidence is admissible

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4
Q

Under common law, what is the effect of integration?

A

Discharges prior agreements to the extent that is it inconsistent with them

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5
Q

Under common law, what is an integrated agreement?

A

Writing or writings constituting final expression of one or more terms of an agreement

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6
Q

Under common law, what question must be determined by court to determine questions of interpretation or whether PER can be applied?

A

Whether agreement is integrated

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7
Q

Under common law, are contracts assumed to be fully integrated or not integrated?

A

Assumed to be fully integrated unless evidence showing otherwise is presented

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8
Q

Under UCC, can terms of integrated agreement be contradicted by evidence of prior or contemporaneous agreement?

A

No

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9
Q

Under UCC, can terms of integrated agreement be explained or supplemented?

A

Yes

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10
Q

Under UCC, what three elements are admissible to explain or supplement terms of an integrated agreement?

A
  1. Course of performance
  2. Course of dealing
  3. Usage of trade
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11
Q

Under UCC, when are consistent, additional terms not admissible?

A

When the court finds the writing to have been intended as a complete, exclusive statement of the terms of agreement

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12
Q

When is parol evidence admissible (9 exceptions)?

A
  1. Collateral (separate) agreements
  2. Ambiguity of terms
  3. Consistent additional terms (only when partially integrated)
  4. Conditions precedent
  5. Course of dealings, course of performance, trade usage
  6. Consideration
  7. Defenses to enforceability
  8. Context rule
  9. Conduct
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13
Q

Under UCC, what evidence is admissible regardless of whether contract is integrated or ambiguous?

A
  1. Course of performance
  2. Course of dealing
  3. Usage of trade
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14
Q

Course of performance

A

Same parties in same contract where

  1. Transaction involves repeated occasions for performance by party and
  2. Other party with knowledge of nature of performance and opportunity for objection, accepts performance or acquiesces in it without objection
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15
Q

Course of dealing

A

Same parties in earlier similar contracts where
1. Transaction is fairly regarded as establishing common basis of understanding for interpreting their expressions and other conduct

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16
Q

Usage of trade

A

Other parties in same industry where

  1. Any practice or method of dealing has such regularity in a place, vocation or trade as to justify expectation for such
  2. And existence and scope of such usage is proved by facts
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17
Q

What is the order of preference/priority to trade usage, course of performance, and course of dealing?

A
  1. Course of performance
  2. Course of dealing
  3. Trade usage
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18
Q

What is interpretation of trade usage if established by trade code or similar record?

A

Question of law

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19
Q

Under common law, can a court use gap-fillers?

A

No, contract must be sufficiently definite to enable court to ascertain its meaning

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20
Q

Under common law, what happens if material terms are missing from agreements?

A

There is no contract

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21
Q

Under common law, how sufficiently definite must a contract be?

A

Enough to enable a court to ascertain its meaning

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22
Q

Under UCC, can a contract exist when material terms are missing?

A

Yes

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23
Q

Under UCC, what material missing term cannot be filled in?

A

Quantity

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24
Q

UCC Gap-Fillers

A
  1. Payment
  2. Price
  3. Date of delivery
  4. Delivery location
  5. Performance particulars
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25
Q

What implied promises are contained in all contracts?

A
  1. Good faith
  2. Fair dealing
  3. Reasonable efforts for performance
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26
Q

Under UCC, when is payment due?

A

At time of delivery

27
Q

Under UCC, when is payment due in installment contracts?

A

At time of delivery of each installment

28
Q

Under UCC, how can buyer pay?

A
  1. Can pay by check or cash

2. If seller demands cash, buyer must be given reasonable time to obtain cash

29
Q

Under UCC, can parties conclude a contract for sale without settling price?

30
Q

Under UCC, if parties conclude contract for sale without settling price, what is price?

A

Reasonable price

  1. At time for delivery if
  2. Nothing is said as to price or
  3. Price is left to be agreed by parties and they fail to agree or
  4. Price is to be fixed in terms of some agreed market or other standard and is not so set
31
Q

Under UCC, if date of delivery/shipment is not agreed upon by parties, what is it?

A

Reasonable time

32
Q

Under UCC, if contract does not expressly or implicitly call for delivery, what is delivery location?

A

Buyer will pick up such goods at seller’s place of business

33
Q

Under UCC, if contract does not expressly or implicitly call for delivery and seller has no place of business, what is delivery location?

A

Seller’s residence

34
Q

Under UCC, unless otherwise agreed, at whose option are specification relating to assortment of goods?

A

Buyer’s option

35
Q

Under UCC, unless otherwise agreed, what is at buyer’s option?

A

Specification relating to assortment of goods

36
Q

Under UCC, unless otherwise agreed, at whose option are specifications relating to shipment?

A

Seller’s option

37
Q

Under UCC, unless otherwise agreed, what is at seller’s option?

A

Specification relating to shipment

38
Q

Under UCC, particulars of performance are governed by what?

A

Good faith and commercially reasonable limits

39
Q

Under UCC, when are resulting delays excused for particulars of performance?

A
  1. Where such specification would materially affect other party’s performance but is not seasonably made or
  2. Where one party’s cooperation is necessary to the agreed performance of the other but is not seasonably forthcoming
40
Q

Under UCC, when particulars of performance are not seasonably made or forthcoming, what are the results for affected party?

A
  1. Excused for any resulting delay in performance and
  2. May also either
    a. Proceed to perform in any reasonable manner or
    b. after the time for a material part of his own performance, treat the failure to specify or cooperate as breach by failure to delivery or accept goods
41
Q

Under UCC, what are the two types of warranties?

A
  1. Ownership warranties

2. Quality warranties

42
Q

Under UCC, what is implied warranty of title?

A

Warranty that

  1. Title conveyed shall be goods, its transfer rightful and
  2. Good shall be delivered free from any security interest or other lein or encumbrance of which the buyer at the time of contracting has no knowledge
43
Q

Under UCC, what are the two types of quality warranties?

A
  1. Express

2. Implied

44
Q

Under UCC, how is express warranty created?

A
  1. Affirmative act by seller

2. Basis of buyer’s bargain

45
Q

Under UCC, does affirmation of value of goods or statement of seller’s opinion or commendation of goods create a warranty?

46
Q

Under UCC, how does affirmative act by seller create express warranty?

A
  1. Affirmation of fact or promise made by seller to buyer which relates to goods and becomes part of basis of bargain
  2. Any description of goods which is made basis of bargain
  3. Any sample or model which is made part of the basis of the bargain
47
Q

Under UCC, is it necessary that a seller use formal words such as “warranty” or “guarantee” to create a warranty?

48
Q

Under UCC, must the seller have a specific intention to make a warranty in order to create a warranty?

49
Q

Under UCC, what is the flowchart in determining whether a warranty is enforceable in a contract?

A
  1. Created?
  2. Disclaimed?
  3. Breached?
50
Q

Under UCC, how is implied warranty of merchantability created?

A
  1. Seller is a merchant of this type of goods

2. Goods are fit for ordinary purposes

51
Q

Under UCC, what are the two types of disclaimers?

A
  1. General disclaimer

2. Specific disclaimer

52
Q

Examples of general disclaimer for implied warranties

A

“As is” or “with all faults”

53
Q

Examples of specific disclaimer for implied warranties

A
  • Must be conspicuous to buyer

- Mentions merchantability

54
Q

Under UCC, how is implied warranty of fitness for particular purpose created?

A
  1. All sellers (but usually merchants)
  2. Seller is aware of buyer’s particular use
  3. Buyer relies on seller’s expertise
55
Q

Collateral agreements

A

separate agreement that doesn’t affect other contract (exception to PER = admissible)

56
Q

Context rule

A

extrinsic evidence (outside 4 corners) is admissible to determine whether contract was integrated by showing intent/context around formation

57
Q

Purpose of context rule

A

determine integration (partial or full)

58
Q

How are ambiguous terms construed?

A

against drafter

59
Q

Place of Delivery Gap-Filler

A

Seller’s place of business

60
Q

By UCC gap-fillers, when is a shipment contract completed?

A
  1. Common 3P courier gets goods from seller
  2. Seller makes reasonable arrangement for delivery
  3. Seller notifies buyer
61
Q

By UCC gap-fillers, when is a destination contract completed?

A

When goods arrive at buyer’s location

62
Q

What signals a shipment contract?

A

FOB: [seller’s city]

63
Q

What signals a destination contract?

A

FOB: [not seller’s city]

Contracts (7 decks)

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