Terms of K Flashcards
background to PER
Parties memorialize their agreement in a writing with the intent that the writing reflects their final agreement. (aka integration)
anything BEFORE memorializing, written or oral -OR- any oral expression DURING memorializing
are both INADMISSIBLE to change the writing
list (2)
is the writing an integration
- was writing intended as final expression of the agreement?
- was the writing intended to be a complete or partial reflection of their agreement?
if the writing is complete, what does this mean for the writing?
writing cannot be contradicted nor supplemented with additional terms
if the writing is partial, what does this mean for the writing?
cannot be contradicted
can be supplemented with consistent additional terms
The UCC assumes about writings?
assumes that all writings are partial integrations
what is a merger clause
a clause in a written K which says that K is the complete and final agreement btwn the parties
modern trend of considering the effect of a merger clause
merger clause considered only one factor in determining integration (if writing is the final reflection of the agreement of the parties)
What does PER do
keeps out extrinsic evidence of prior or contemporaneous agreements - oral or written- but only if the evidence is used to vary, contradict, or add to a final, later writing…aka bringing evidence to contradict the formation of the writing
list (7)
when can extrinsic evidence be used
- validity issues
- collateral doctrine/naturally omitted terms doctrine
- interpretation
- show true consideration
- reformation
- subsequent modifications
- add’l terms under UCC 2
PER
when can extrinsic evidence be used for validity issues
(Theory)
to attack the agreement’s validity
iow - party acknowledges that the writing accurately reflects the agreement btwn the parties BUT asserts that the agreement never came into being because of
- formation defects
- a condition needed to occur before K came into effect that didn’t
list (2)
When can extrinsic evidence be used for validity issues
(two reasons)
- formation defects - ie fraud, duress, mistake, illegality, misrepresentation etc
- condition required for effect - party offers extrinsic evidence of an oral agreement that K would not become effective until a certain condition occurred
collateral terms doctrine
extrinsic evidence permitted for collateral terms that are related to subject matter of writing but not part of the primary purpose
***less often applied because too conclusory thus, inflexible***
naturally omitted terms doctrine
terms that would have naturally been omitted from the written agreement are admissible extrinsic evidence
list (2)
under the “naturally omitted terms doctrine” what terms are considered omitted
- term that does not conflict with writing
- terms that concerns a subject that parties wouldn’t expect to include in the writing
list (2)
parol evidence/extrinsic evidence permitted for interpretation when
- uncertainty/ambiguity in the written agreement’s terms or
- dispute as to meaning of terms
parol evidence to show true consideration allowed when?
extrinsic evidence allowed to show that true consideration was paid
parol evidence to show reformation allowed when?
party alleges facts that show the writing should be reformed (i.e. mistake)
parol evidence for subsequent modifications
evidence of SUBSEQUENT modifications to writing allowed…so parties can show that they altered the writing after it’s making
remember PER prohibits writings before writing is made but not after!!
parol evidence for additional terms under UCC 2
party cannot contradict a writing but can add additional consistent terms or supplement/explain terms using exstrinsic evidence
UNLESS
- merger clause
- ct rules that writing was intended as complete
list (4)
what are the types of warranties that could be included in a K?
- express warranties
- implied warranties
- implied warranty of merchantability
- implied warranty of fitness for a particular purpose
- warranty of title
- warranty against infringement
- disclaimer of warranties
- buyer’s damages for breach of warranty
What is the IWM
It’s an implied warranty in every K by the merchants who deals in goods of the kind that are being sold that those goods are merchantable for sale
For goods to be merchantable they need to be
fit for the ordinary purpose for which such goods are used
What is implied warranty for fitness for a particular purpose
(IWFP)
the good is fit for the buyer’s particular purposes
list (3)
Warranty for IWFP is implied when
Warranty is implied when
- any seller (merchant or not) has reason to know the particular purpose the good is used for
- seller knows buyer relies on seller’s skill and judgement to select a suitable good -AND-
- buyer in fact relies on seller’s skill or judgement
what is warranty of title
title is good, transfer is rightful, no encumbrances
what is warranty of infringement
good are delivered free of any patent, trademark, copyright, or similar claims
List (4)
How can implied warranties be disclaimed
- “as is”, “with all faults” language
- conspicuous language aka clear language, well displayed etc.
- buyer examines or refuses to examine good
- by course of dealing, course of performance, or usage of trade
how is warranty of title disclaimed?
specific language or circumstances showing seller does not claim title
how is warranty of merchantability disclaimed?
with a disclaimer mentioning “merchantability”
how is warranty of fitness for PP disclaimed?
obvious (conspicuous) written disclaimer
can also use “as is”, examination, course of dealing, course of performance, or usage of trade
What is a noncarrier case
Sale where parties did not intend that goods be moved by a common carrier
Risk of loss in a noncarrier case
seller is a merchant - ROL passes to buyer when buyer takes physical possession
seller is a nonmerchant - ROL passed to buyer upon delivery of tender
What is a carrier case
Sale where parties intended goods be moved by a carrier
What are the types of carrier cases
- shipment contracts **bar fav**
- destination contracts
What is a shipment K
K requires seller to ship good by carrier but does not require delivery at a particular destination
ROL in a shipment K
ROL passes to buyer when goods delivered to carrier
list (4)
What are the seller’s duties under a shipment K
- make reasonable K with carrier on behalf of buyer
- deliver goods to carrier
- notify buyer of shipment asap
- provide buyer with any docs needed to take possession of goods
What is a destination K
If K requires seller to deliver goods at a particular destination
ROL in a destination K
ROL passes to buyer when goods are tendered to buyer at the destination
ROL under FOB terns
ROL passes to buyer at named location
ROL on seller to get goods to named location
ROL for FAS
ROL passes to buyer once goods are delivered to dock
FOB + seller city =
shipment K
shipment K =
FOB + seller city
FOB + any other city =
destination K
destination K
FOB + any other city =
If goods are returned to seller, ROL on?
buyer until goods reach seller
In a sale on approval, ROL on?
(buyer takes goods for trial period and can return even if the conform to K)
ROL passes to buyer only when they accept
When goods have already been identified, and goods arrived destroyed K is:
avoided
