Interpreting Contracts

Question 1

What are the default UCC warranties?

Answer 1

1. Warranty of title
2. Warranty of merchantability
3. Warranty of fitness for a particular purpose.

Question 2

What is warranty of title and how do you modify?

Answer 2

Good title to the goods

+ the rightful transfer of the goods

+ no liens are attached to the goods.

The warranty can be excluded or modified by specific language or circumstances showing absence of good title.

Question 3

What is the warranty of merchantability?

Answer 3

The warranty guarantees that the goods are fit for the ordinary purposes for which those goods would be used.

Question 4

When does the warranty of merchantability apply?

Answer 4

When the seller is a merchant.

Question 5

What can displace the warranty of merchantability?

Answer 5

1) Specific mention of the word merchantability
2) Conspicuousness (bold font) if in writing
3) Any other language or circumstances that are reasonably understood to exclude the warranty

Examples: “As is” “Patent defects” “easily observable defects” “obvious defects.”

Question 6

When does warranty of fitness for a particular purpose apply?

Answer 6

The warranty only applies where, at the time of contracting, the seller has good reason to know: The particular purpose for which the goods are required

+ That the buyer is relying upon the seller’s skill to select reasonable goods.

Question 7

How do you disclaim the warranty of fitness?

Answer 7

1. The disclaimer is in writing in clear & conspicuous bold font

Or

2. If the goods have obvious defects.

Question 8

UCC default rule for a missing price term?

Answer 8

Price = reasonable market price at the time established for delivery.

Question 9

UCC default rule for a missing time term?

Answer 9

A reasonable time.

Question 10

UCC default rule for a missing place of delivery term?

Answer 10

Seller’s place of business.

Question 11

Common law default rule for a missing price term?

Answer 11

Reasonable value for the services rendered.

Question 12

Common law default rule for a missing duration term in an employment contract?

Answer 12

At will employment.

Question 13

What is the obligation of good faith and fair dealing for both UCC and common law?

Answer 13

1. Good faith: honesty in-fact
2. In the case of a merchant: honesty in-fact and observance of reasonable industry standards.

Question 14

When is the Obligation of Good Faith and Fair Dealing triggered?

Answer 14

Where the terms of the contract leave a critical term, such as:

1. The price
2. Satisfaction

Or

3. Quantity terms open to the determination of one party

Question 15

Under the UCC, the party entitled to determine the particular quantity of goods must?

Answer 15

Make their determination in good faith. They cannot lie about output and cannot lie about actual requirements.

Question 16

For outputs and requirement contracts, when will obligations be voided?

Answer 16

When there is an unreasonably disproportionate demand or tender, if there was either:

1. A stated estimate

Or

2. A past course of dealing.

Question 17

What is the effect when one party has reason to know of the other party’s subjective understanding of their agreement?

Answer 17

The first party is bound by it if not corrected.

Question 18

When at the time of contracting, both parties have the same subjective understanding, what is the effect?

Answer 18

The subjective understanding controls.

Question 19

What is the rule of contra proferentem?

Answer 19

If an ambiguous term is included in the contract, then construe against the drafter.

Question 20

When does the doctrine of reasonable expectations apply?

Answer 20

Contracts of adhesion (e.g. insurance).

The doctrine only applies to defeat the enforceability of the boilerplate terms that are inconsistent with the reasonable expectations of the purchaser.

Question 21

In construing a contract, what is the controlling hierarchy of the contract?

Answer 21

express term > course of performance > course of dealing > usage in trade

Question 22

What is usage in trade?

Answer 22

A practice or method of dealing having such regularity of observance in a place or trade as to justify an expectation that it will be observed with respect to the transaction in question.

Question 23

What is a course of dealing?

Answer 23

A pattern of conduct concerning previous transactions between the parties that is fairly to be regarded as establishing a common basis of understanding for interpreting their subsequent expressions and other conduct.

Question 24

What is a course of performance?

Answer 24

It is present when a particular contract involves repeated occasions for performance by a party and the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection.

Question 25

Trade usage, course of dealing, and course of performance are admissible in contract interpretation for? What can they not do?

Answer 25

**Can** 1. fill in gaps 2. resolve ambiguities **Cannot** Contradict the express terms of the contract.

Question 26

What can **course of performance** evidence can **establish**?

Answer 26

It can establish a waiver or modification of express terms.

Question 27

What is a **partially integrated** contract?

Answer 27

The terms contained within the writing is intended to be the final expression of those terms.

Question 28

What is a **completely integrated** contract?

Answer 28

The parties intend the contract to be the complete + exclusive statement of all the terms.

Question 29

The question of whether the terms of a contract are **partially integrated** (final) and whether an integration is **complete** (exhaustive) is for **who to decide**?

Answer 29

The judge, not the jury.

Question 30

What is the **best evidence** of a **completely integrated** contract?

Answer 30

A merger clause that the writing contains the complete and entire agreement of the parties or other words to that effect.

Question 31

What are the three purposes **parole evidence** is **introduced**?

Answer 31

1. To explain or interpret the terms of the written contract 2. To supplement the terms of the written contract And 3. To contradict the terms of the written contract.

Question 32

What is the legality of using **parole evidence** to explain or **interpret terms** of a written contract?

Answer 32

Parole evidence is always admissible for this purpose.

Question 33

What is the common law **legality** of using **parole evidence** to **supplement terms** of a written contract?

Answer 33

Parole evidence is admissible for this purpose.unless, the contract is completely integrated.

Question 34

What are the **steps** in analyzing a **parole evidence** **issue**?

Answer 34

1. What is the purpose for which the evidence is being introduced? 2. Does the evidence relate to a term or contract that is integrated? 3. Is it integrated partially or completely?

Question 35

What is the **UCC** **legality** of using **parole evidence** to **supplement** terms of a **written contract**?

Answer 35

Trade usage, course of dealings, and course of performance can supplement a completely integrated agreement.

Question 36

What is the **legality** of using **parole evidence** to **contradict** terms of a written **contract?**

Answer 36

Parole evidence is not admissible for this purpose.

Question 37

The **parol evidence** rule only **applies** to what **types** of evidence?

Answer 37

Oral or written communications +made prior to or contemporaneously with the execution of a written agreement.

Question 38

Does the **parole evidence** rule **apply** to an **attack on the validity** of the written agreement?

Answer 38

No, you can use parole evidence to prove that the written agreement is invalid or unenforceable.

Question 39

How can a party assert an **attack on the validity** of a written agreement **using parole evidence**?

Answer 39

1. Evidence that the parties orally agreed to a condition precedent to the contract taking effect will not be barred. 2. Evidence that a written agreement lacks consideration or that there is a false recital of consideration is not barred 3. Evidence of mistake or duress is not barred by the parole evidence rule 4. Parole evidence of fraud is always admissible.