Page 25 Flashcards
What is the UCC parol evidence rule?
Parol evidence can be used to explain or supplement a final expression, but not to contradict it
What is the difference between common law and UCC parol evidence rule?
- CL: parol evidence cannot be admitted if there’s a total integration
- UCC: evidence can be admitted if it clarifies the meaning of terms even if the integration is total
What is the order of importance for the triad?
- course of performance
- course of dealing
- common usage of trade
What is the rule about admitting triad evidence to a total integration?
It is allowed to supply additional terms but not to contradict the writing
If there is a contradiction between a writing and triad parol evidence, what happens?
It is resolved in favor of the expressed term
What is course of dealing?
Previous conduct between the parties that shows a basis of understanding to interpret expressions
What is course of performance?
This follows the parties’ own private usage of trade developed in prior dealings with each other
What is usage of trade?
Any practice that happens so often in a place or trade that an expectation it will be observed is justified
How do you establish usage of trade?
Expert testimony
Who is bound by usage of trade?
Any party that is or should be aware of it, like those involved in the trade
Can usage of trade be used to contradict the plain meaning of language?
Yes, if it doesn’t totally negate it
What are the two types of UCC warranties?
Express and implied
What is a UCC express warranty?
Parties expressed something that created a warranty, and these can never be disclaimed once they are made. Ie: saying the car you’re selling has 10,000 miles on it
What are the four different ways to create a UCC express warranty?
- DESCRIPTION of the goods
- affirmation of FACT about the goods
- PROMISE about the goods
- exhibition of SAMPLE or model
What is an example of a description of the goods express warranty under the UCC?
Saying you’re selling a 1999 Cabriolet convertible
What is an example of an affirmation of fact about the goods under a UCC express warranty?
Saying the car only has 5000 miles on it
What is an example about a promise about the goods express warranty under the UCC?
Saying you will replace any defective parts within six months
What are the three different kinds of implied warranties under the UCC?
- implied warranty of TITLE
- implied warranty of MERCHANTABILITY
- implied warranty of FITNESS for a particular purpose
What is the implied warranty of title?
Seller warrants that he owns the goods and has a right to transfer them, giving Buyer a right to sue for breach if that is not the case
Can you disclaim an implied warranty of title?
Yes, by using language or circumstances to show warranty is not being made. Ie: saying you will sell goods, but you don’t own them/or selling goods out of a trenchcoat in a back alley implies you don’t have good title
What is an implied warranty of merchantability?
A promise that goods will be fit and safe for the ordinary purpose they are used (only applies to sellers that deal with goods of a kind)
If a retail store sells its delivery truck to someone, does that have an implied warranty of merchantability?
No, because they are not in the business of selling trucks
Can you disclaim an implied warranty of merchantability?
Yes, by using words like “as is” or “with all faults”
What is the implied warranty of fitness for a particular purpose?
When the seller knows the buyer is relying on his skill/judgment to select goods that are suitable for a purpose
What is an example of the implied warranty of fitness for particular purpose?
Pharmacist suggesting a certain toothpaste, and then you rely on his skill/judgment
Is it possible to disclaim an implied warranty of fitness for a particular purpose?
Yes, by any language indicating it is not being made
What is CISG?
Convention for the International Sale of Goods. This is a treaty that deals with contracts for the sale of goods between parties in different countries. It doesn’t need SOF or PER, or even a writing, and the contract can be approved by any means
If a term is added to a contract, how does that relate to a conflicting term?
It is preferred over the conflicting term
If it isn’t clear if language is a condition or promise, what will the court say?
Promise
How are written addendums treated in reference to preprinted terms?
Preferred over preprinted terms
If intent cannot be determined, how should the contract be resolved?
Against the drafter because he is responsible for the lack of clarity
