Terms of the Deal

Question 1

Trade Customs added to terms

Answer 1

party must have actual knowledge of trade custom OR usage must be prevalent to justify constructive knowledge

Question 2

Parol Evidence Rule (Common Law)

Answer 2

integrated writing cannot be contradicted with prior oral agreements, but can be supplemented unless COMPLETELY integrated

Question 3

Completely Integrated Agreement (PER)

Answer 3

intent for it to be FINAL & COMPLETE expression of agreement

Question 4

Parol Evidence Rule (UCC)

Answer 4

Common Law + may be explained or supplemented by evidence of consistent additional terms (TRIAD evidence)

Question 5

UCC 1-303 TRIAD

Answer 5

(1) Course of performance (current K)
(2) Course of dealing (previous Ks)
(3) Usage of trade (industry practice)

Question 6

Exceptions to PER

Answer 6

(1) fraud, illegality, duress, mistake, no consideration
(2) oral condition precedent to formation
(3) subsequent agreements (modifications)

Question 7

Parol evidence can be admitted . . .

Answer 7

to interpret the agreement; to establish “the meaning of the writing”

Question 8

Terms hierarchy

Answer 8

Express Terms
Course of Performance
Course of Dealings
Usage of Trade

Question 9

If terms are ambiguous . . .

Answer 9

go against the party who drafted the terms

Question 10

Factors for Adhesion Contracts

Answer 10

(1) reasonable expectation of adhering party

(2) whether contract is unconscionable

Question 11

Effectuating assumed intent (UCC)

Answer 11

lawful agreement for EXCLUSIVE dealing imposes obligation by seller to use best efforts to supply the goods and by buyer to use best efforts to promote their sale

Question 12

Implied duty of Good Faith & Fair Dealing

Answer 12

one party has discretionary power affecting the rights of the other, must exercise good faith in accordance with fair dealing

can be negated by express terms

Question 13

Express Warranties (UCC)

Answer 13

created if any of following is part of basis of bargain:

(1) affirmation of fact or promise by seller relating to goods
(2) any description of the goods
(3) any sample or model = the whole will conform

Question 14

Implied Warranty of Merchantability (UCC)

Answer 14

implied if seller is merchant
- goods are fit for ordinary purpose in which those goods are used

• *To Exclude**
• must mention “merchantability”
• if in writing, must be conspicuous

Question 15

Implied Warranty of Fitness for Particular Purpose (UCC)

Answer 15

(1) seller has reason to know of particular purpose
(2) buyer is relying on seller’s skills/judgment
(3) THEN -> goods shall be fit for that particular purpose

• *To Exclude**
• must be in writing and conspicuous

Question 16

Exclusion of Warranties (UCC)

Answer 16

construe words/conduct for negating/creating warranty wherever reasonable as consistent
- giving of a warranty trumps taking one away