Performance & The Parol-Evidence Rule Flashcards
What are the four big topics within this area?
- Parol-evidence rule
- Warranties
- Conditions
- Excuses of performance obligations
What is the mnemonic four performance issues?
Pizza With Crawling Escargot
What is the first step to determining if the parol evidence rule applies?
- Determine what the agreement is.
If you see a written contract that the court finds is the final agreement and earlier oral or written statements about the same deal, think PER.
Does the PER apply to later written or oral statements about the deal?
No, that’s a modification.
Does the PE or apply to earlier written documents?
Yes
What are the two types of integrations for a contract?
- Complete integrations means that the contract expresses all times of the agreement.
- Partial integrations means that there is a final writing, but sometimes are not included.
What is the gateway question for integrated writing?
Is this a comprehensive writing-full and final expression of the parties’ agreement?
How do you distinguish an agreement that is not integrated from one that is completely or partially integrated?
Look for a merger clause (evidence of a complete integration)
What is the UCC presumption for a writing?
The UCC presumes that a writing is, at most, only a partial integration – unless the parties would have certainly included a disputed it term in the writing.
What 3 situation doesn’t the PER bar?
- The PER does not bar evidence relevant to a defense against contract formation.
- Even if a writing is totally integrated, a party can introduce evidence of a second separate deal.
- Even if a writing is totally integrated, a party might be able to introduce evidence of a prior communication that is designed to interpret and ambiguous term in the final agreement.
What is a warranty?
A warranty is a promise about a term of the contract that explicitly shifts risks to the party making the promise.
Can you disclaim all warranties?
Yes
What are express warranties?
A promise that affirms or describes the goods and is part of the basics of the bargain is an express warranty unless it is merely the seller’s opinion.
• The use of a sample remodeled it creates an express warranty that the good so it will be like the sample.
What is the implied warranty of merchantability?
Warrants that the goods are fit for ordinary commercial purposes.
When is the implied warranty of merchant ability triggered?
This warranty is triggered only when the seller is a merchant dealing in the goods at issue.
Can a merchant disclaim the implied warranty of merchantability?
Yes if very clearly done.
Look for very conspicuous language that mentions the warranty of merchant ability or words like “ as is”.
What is the implied warranty of fitness for a particular purpose?
The seller makes in imply warranty that the goods will satisfy this special purpose.
Can a non merchant extend the implied warranty of fitness for a particular purpose?
Yes as long as the buyer relies on the sellers expertise.
Can the implied warranty of fitness for a particular purpose be disclaim?
Yes if conspicuous language is used such as “as is”.
But, unlike the implied warranty of merchant ability, the disclaimer for implied fitness for a particular purpose must be in writing.
What is a condition?
It condition is another way to shift risk by stating that one parties contractional obligation will kick in only if some future events takes place.
How are express conditions created?
Express conditions are created by language in the contract. Look for magic words like “only if,” “provided that,” “on the condition that,” only in the event that,” etc.
• Express conditions must be strictly satisfied unless the condition is somehow excuse.
How are satisfaction conditions generally met?
- The preferred approach is to use an objective standard of satisfaction, meaning that if most reasonable people will be satisfied, in the condition is met.
