Module 9 Flashcards
What is the definition of rely in promissory estoppel?
There must be a cost to the promisee of doing something in reliance on the promise
What is the primary reason that promises without consideration are enforced?
The premises have relied on the promises
What is the parol evidence rule?
Bars evidence of communications, written or oral, extrinsic to the final writing.
What do critics say about the parole evidence rule ?
Difficult to understand and unworkable
What are the two questions that should be asked when considering the parol evidence rule?
- Is the contract integrated/does it contain the entire understanding of the parties
- If so, is the integration total or partial
- How is the meaning of the terms of the contract to be ascertained
- What is the interpretation of 1/more terms of the contract
How does a final agreement affect tentative terms discussed earlier negotiations?
Earlier tentative agreements and negotiations are in operative in determining the content of the contract. The final agreement supersedes them
What is total integration?
When I contract is final and complete. Cannot be contradicted by parol evidence and can’t be supplanted by consistent additional terms
What is a partial integration?
When the writing is final, but doesn’t completely express the parties’ contract. Cannot be contradicted by parol evidence, but may be supplanted by consistent additional terms
How does the parol evidence rule affect extrinsic evidence of terms that were agreed upon prior to or at the same time as a total integration?
Parol evidence bars those terms regardless of whether they were written or oral
How does parol evidence deal with contemporaneous agreements?
A) majority: they should be treated like prior agreements that should be deemed to be a part of the integration and admissible into evidence
What is a typical example of a parol evidence problem?
One of the parties offers into evidence a term that is not in the writing but which the party says was orally agreed to prior to or contemporaneously with the writing
What is the reason for the parol evidence rule?
To stop at perjured testimony and uncertain testimony of slippery memory
The basic idea of the parol evidence rule is if the term didn’t survive the writing, what….?
It wasn’t intended to
What is the theory of merger?
The offer term is excluded because it has been superseded by the writing
Parole evidence rule is designed to make parties but the complete agreement, including contemporaneous oral agreements, in writing at the risk of what?
Losing anything they had agreed on
Questions of intent with regard to parol evidence are usually for whom?
Courts of transmuted this question into one of law and it is decided by the trial judge and then subject to appellate review
If the court decides that oral evidence rule has been violated, what will happen to the argued term?
It will be excluded, not because it was not agreed on, but because it is legally immaterial. The term is admitted into evidence and the jury determines it if it was actually agreed on
Can the parole evidence rule be raised for the first time on appeal?
Yes because it is a substantive rule it can be raised for the first time on appeal despite the failure to object
If a writing appears to evidence a contract that is not a final embodiment of the contract or some of its terms, does parole evidence apply?
No
When is a confirmation an integration?
When it is prepared by only one party, and sent to another party, and that party makes no response to it prior to performance
What are the rules for a final writing?
It doesn’t have to be written any particular way or even signed. It just has to have been regarded by the parties as the final embodiment of their agreement. The more complete and formal it is the more likely it was intended to be final
What are the tests used to determine total integration?
- four corners rule
- collateral contract concept
- Williston’s rules
- Corbins approach
- UCC
What is the four corners rule?
Determines the existence of a total integration by concentrating on the words of the writing. If it appears complete on its face is presumed to be total, and this is decided by the judge looking solely at the writing.
*** critics think it is illogical and impossible just by looking at writing
What is the collateral contract concept?
Determines existence of a total integration by concentrate in the words of the writing
- does not prevent collateral agreement/independent writings from being introduced as long as the main agreement isn’t contradicted
- A separate oral agreement about anything the contract is silent about that isn’t inconsistent with the terms can be proven by parol
- ** criticism: using this test no writing is considered more than a partial integration