Subsequent modifications, interpretation, and mistake Flashcards
No Oral Mod Clauses (NOM clauses) - under UCC
called the “private” SoF – under UCC 2-209 throws out oral evidence or prior dealings; MUST be signed, like NOM clauses - b/w merchants must be separately signed
NOM clauses interaction with SoF in UCC
If the modification changes it to be within the statute, the statute applies; ex) oral post modification to make it >$500; same price but increase in quantity, only enforceable to amount in initial contract; can modify down
Waivers (NOM clauses)
Sometimes will just enforce anyways using a waiver – usually have to show reliance for court to believe you - think of fire insurance case BUT You can retract a waiver if the other party hasn’t relied on the waiver
Mistake defined –
belief that is not in accord with the facts
Mutual mistake
1) basic assumption upon which deal was made AKA does it have a material effect on the deal (2) does one party bear the risk of the deal (look at 154, see below)
Bearing the risk – (a) contract explicitly or implicitly allocates risk (b) conscious ignorance (c) court allocates the risk
Unilateral mistake
Unilateral mistake – Note: 1-2 are the same; (1) basic assumption upon which deal was made AKA does it have a material effect on the deal (2) does one party bear the risk of the deal; the third, different element: (3) must be (a) so egregious that in would be unconscionable or a GRAVE injustice or (b) the other party knowingly caused the mistake OR the fault of other party causes mistake
where bear the risk is
(a) contract explicitly or implicitly allocates risk (b) conscious ignorance (c) court allocates the risk
Interpretation defined
Courts can interpret clauses based on the intent of the parties if ambiguous
Interpretation Interaction with Parol Evidence
Basically nothing is barred from the court’s view
Burden on parties during Interpretation dispute
the burden is typically on party seeking to narrow the interpretation of a clause (think chicken case)
