interpretation Flashcards
what can ET, CP, CD, TU be used for?
can give meaning to, qualify or supplement terms of K
what’s the basic purpose of the parol evidence rule?
ecludes extrinsic evidence offered to alter/vary unambiguous terms of K
to what kind of info does the PE Rule apply?
applies to prior/contemporaneous info
are oral and written K’s both subject to PE rule?
written K’s only
what kind of evidence is blocked by PE Rule in fully integrated contract?
PE rule blocks ALL evidence from fully integrated, even consistent/additional
what kind of info is blocked by PE rule in a partially integrated K?
contradictory info
what kind of evidence is allowed by PE rule in partially integrated K?
explain/supplement terms of K
how does PE rule apply to ambiguous terms?
PE rule does not block evidence needed to interpret ambiguous term
define when a term is “ambiguous”
reasonably susceptible to more than one interpretation
what’s the purpose of an adhesion contract?
eliminate bargaining over terms of tons of individual K’s - efficiency
how is an adhesion K created?
drafted unilaterally by dominant party - “take it or leave it” - no opportunity to bargain
how does the cout treat terms of adhesion K’s?
interpret ambiguities against drafter, won’t enforce unconscionable terms
what makes a term in an adhesion K unconscionable?
customers are not bound to unknown terms which are “beyond range of reasonable expectation”
what is the purpose of implied terms added by the courts?
effectuate assumed intent and public policy (prevent illusory promises)
name two common law implied terms added by the courts
good faith/fair dealing, reasonable efforts
when is the implied term of “reasonable efforts” most commonly used?
to prevent illusory promise - exclusivity of deal
describe the implied term of “good faith and fair dealing”
honest efforts, retain abilities to receive benefits of K
how do implied terms relate to express terms regarding enforcement of terms?
implied terms should NEVER be read to vary express terms
what are UCC gap fillers used for?
to fill gaps where parties have not otherwise agreed to basic premises of K
describe the UCC gap filler “Open Price Term”
reasonable market standard price will be used if none is specified
describe the UCC gap filler “Absence of Specified Time for Delivery”
delivery takes place at seller’s place of business or residence if not specified
describe the UCC gap filler “Absence of Specific Time Provisions”
reasonable time if no specific time
what is the basic purpose of warranties?
to allocate risk of seller, who’s in the best position to know about the goods
how is an express warranty created?
affirmation of fact by seller becomes part of the bargain
what kinds of statements/things can create an express warranty?
affirmation of fact, promise, description fo goods, sample, sign in store,
how does superior knowledge relate to creation fo an express warranty?
(superior knowledge) + (no qnalification fo statement as opinion) = affirmation of fact = EW
does a buyer have to rely on seller’s info to create a breach of express warranty?
no reliance on seller’s info is needed
does a statement AFTER a sale still create an express warranty?
yes, it’s considered to be a modification, which doesn’t require consideration under UCC
when do implied warranties exist? do they have to be created?
implied warranties are ALWAYS held to exist unless expressly excluded or disclaimed
when is an implied warranty of merchantibility created?
automatically becomes part of K for any SALE OF GOODS BY A MERCHANT with respect to goods of the kind unless expressly excluded from K
when is there NOT a IWM?
if buyer had chance to examine goods and should have noticed defect
define “merchantable goods”
pass without objection in the trade, of fair, average quality, fit for the ordinary purpose for which such goods are used
when is there an IWFPP?
(1) seller knows or RTK of buyer’s particular purpose, (2) seller knows/RTK that buyer is relying on seller’s skill/judgment, buyer relies on that info
is IWFPP applicable to sale of all goods, or just sales by merchants?
IWFPP applies to all sales of goods, not just to sales by merchants
what’s the purpose of disclaiming warranties?
disclaimers eliminate any cause of action for breach of K
how can you dsiclaim ALL implied warranties?
say “as is”
how can you disclaim an IWM?
must mention merchantability and disclaimer must be conspicuous IF in writing
define “conspicuous” as related to warranty disclaimers
such that a reasonable person would notice it, not just a slightly larger font
how can you disclaim an IWFPP?
disclaimer must be conspicuous AND in writing
how do express and implied warranties relate to each other in terms of enforcement?
express is favored over implied warranty if they’re contradictory
