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bar Contracts > Third Issue: TERMS of the contract > Flashcards

Third Issue: TERMS of the contract Flashcards

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1
Q

how to treat the parol evidence rule

A

like evidence

  • can courts EVEN consider it
  • not yes or no being allowed
  • BUT PURPOSE being offered
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2
Q

triggering words for Parol Evidence Rule

A

1) FINAL K:

2) EARLIER words of one or both parties

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3
Q

do the words have to come BEFORE K for parol evidence rule

A

YES

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4
Q

policy for parol evidence rule

A

that the final written K replaces earlier agreements, neg. and convos.

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5
Q

how to remember that parol has no e?

A

because evidence has so many damn e’s there isnt enough for parol

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6
Q

vocab: integration

A

written agreement that court finds is he final agreement TRIGGERS PER

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7
Q

vocab: partial intergration

A

written and final, but not complete

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8
Q

vocab: complete intergration

A

written, final and complete

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9
Q

vocab: merger clause

A

k clause states “this is the complete and final agreement”

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10
Q

vocab: Parol evidence

A
  • words of party (parties)
  • BEFORE intergration: BEFORE AGREEMENT was put into writing
  • oral or written
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11
Q

does the words need to be BEFORE agreement was put into written form for parol evidence rule to apply

A

YES

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12
Q

5 PER patterns

A

1) changing/contradicting terms
2) mistake in integration
3) defenses
4) ambiguity: explaining term in written rule
5) adding to the written deal

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13
Q

what is the general rule for PER and changing/contradciting terms

A

GR CANNOT use Parol evidence of earlier agreements cannot be CONSIDERED for the purpose of contradicting the terms of the written K

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14
Q

can parol evidence be allowed for MISTAKE in integration (clerical error)

A

YES, court may CONSIDER evidence of such terms for the LIMITED PURPOSE of determine w/e there was a mistake in integration

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15
Q

can parol evidence be allowed for DEFENSES (getting out of a written deal)

A

YES
- PRE does NOT prevent court from CONSIDERING purpose of earlier words of the parties for the LIMITED PURPOSE of determine w/e there is a defense to that enforcement, such as misrep, fraud or duress

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16
Q

does the parol evidence rule PREVENT ambiguity (explaining terms in the written deal)

A

the PER DOES NOT prevent court from CONSIDERING evidence of earlier agreements to resolve ambiguities in the written K

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17
Q

what is the only time if partial integration matters

A

adding to the written deal

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18
Q

does the PER prevent court from considering evidence of earlier agreement as a source of consistent, ADDITIONAL TERMS

A

YES

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19
Q

x/c where the PER prevent court from considering evidence of earlier agreement as a source of consistent, ADDITIONAL TERMS

A

unless the court finds

1) that the written agreement was only a PARTIAL INTEGRATION OR
2) that the additional terms would ORDINARY be in a separate agreement

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20
Q

can conduct also be a source of contract terms

A

YES

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21
Q

what are the 3 forms of conduct the courts look to add to terms of contract

A

1) course of performance
2) course of dealing
3) custom and usage

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22
Q

course of performance when courts will allow conduct to be source of K

A

same people, same K

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23
Q

COURSE OF DEALING when courts will allow conduct to be source of K

A

same people, different but similar K

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24
Q

CUSTOM AND USAGE when courts will allow conduct to be source of K

A

different but similar people, different but similar contract

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25
Q

what are the 4 ucc terms in sales of good contracts that are DEFAULT TERMS

A

1) delivery obligations of seller of goods if delivery by COMMON CARRIER
2) RISK OF LOSS
3) WARRANTIES OF QUALITY
4) LIMITATIONS ON WARRANTY LIABILITY

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26
Q

generally what does it mean when delivery obligations of seller of goods if delivery by COMMON CARRIER

A

what are the sellers DELIVERY OBLIGATIONS

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27
Q

do we care where the shit gets sent

A

NO THIS AINT UPS CLASS

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28
Q

when does delivery obligations of seller of goods if delivery by COMMON CARRIER come into facts

A

when S and B are at different places and use a third party to deliver

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29
Q

what is the rule for SHIPMENT K for delivery obligations of seller of goods if delivery by COMMON CARRIER

A

seller COMPLETES its DELIVERY OBLIGATION when it

1) gets the gods to common carrier
2) makes REASONABLE ARRANGEMENTS for delivery and
3) NOTIFIES buyer

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30
Q

in a shipment K for common carrier when does sellers oblgiation complete for delivery

A

seller COMPLETES its DELIVERY OBLIGATION when it

1) gets the gods to common carrier
2) makes REASONABLE ARRANGEMENTS for delivery and
3) NOTIFIES buyer

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31
Q

in a shipment K for common carrier is sellers obligation complete when it gets delivered

A

NOOOOOO only when

1) gets the gods to common carrier
2) makes REASONABLE ARRANGEMENTS for delivery and
3) NOTIFIES buyer

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32
Q

when does a seller complete delivery obligations of seller of goods if delivery by COMMON CARRIER: DESTINATION k’s

A

seller does NOT complete its delivery obligation until goods arrive at destination

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33
Q

how to determine if shipment K or destination K

A

FOB (city) as source for determing w/e shipment or designation K

34
Q

what does FOB mean

A

Free on broad

35
Q

what if it is FOB city and followed by city where the SELLER is or where goods are

A

means shipment K

36
Q

when will you know it is a shipment K

A

if it is FOB city and followed by city where the SELLER is or where goods are

37
Q

when will you know it is a designation K

A

where FOB followed by ANY OTHER city

38
Q

what if the is a FOB followed by any other city than sellers city or where goods are located

A

designation K

39
Q

what is the risk of loss problem

A

1) after K has been formed but b4 B receives the goods
2) goods are damaged or destroyed
3) by neither B or S to blame

40
Q

for UCC do what for MC answers that include the word TITLE

A

IGNORE THAT

41
Q

what is the ORDER of the risk of loss

A

1) Agreement of parties controls
2) Breach: breaching party is liable for any UNINSURED loss even though breach is UNRELATED to problem
3) Common Carrier Delivery: risk of loss shifts from S to B at the time the S COMPLETES DELIVERY OBLIGATION
4) “Catch-all”

42
Q

what is easy way to remeber the order for determine who has the risk of loss

A

ABC’s

1) A:agrement
2) B:breach
3) C:common carrier
4) C:catch all

43
Q

what is the catch all for determining where risk of loss lays

A

(no agreement, no breach, no delivery by a carrier)
1) w/e S is a MERCHANT
(determining if B is a merchant is IRRELEVANT)
risk of loss shifts from a merchant-sellr to the B on the
2) buyers RECEIPT of the goods

44
Q

Catch All: when does risk of loss shift form a NON-MERCHANT seller

A

when the S TENDERS the goods

45
Q

what does tendering goods means

A

makes goods available

46
Q

Catch-All: who do you look at for is a merchant for the

A

ONLY S merchant. If B is merchant is irrelevant

47
Q

catch-all: when seller is a merchant when does it shift to buyer for risk of loss

A

on the B’s receipt of goods

48
Q

what are the 3 types of warranties of qualities

A

1) express
2) implied warranty of MERCHANTABILITY
3) implied warranty of fitness for a PARTICULAR PURPOSE

49
Q

what is express warranties of quality

A

words that PROMISE, describe or state facts

50
Q

examples of express warranty

A

1) “all steel”
2) guaranteed to operate for 2 years
3) seller’s showing buyer a sample

51
Q

does showing a sample or model to a buyer create an express warranty of quality

A

YES

52
Q

where is the only time it matters where a merchant is the one that deals in this kind of goods to apply?

A

IMPLIED WARRANTY OF MERCHANTABILITY

53
Q

what is the implied warranty of merchantability

A

1) seller is a merchant WHICH DEALS GOODS IN THAT KIND

2) warranty: gods are fit for ordinary purposes

54
Q

what does it mean for implied warranty of marchantability

A

1) seller is merchant (dealer of goods in that kind)

2) goods are fit for ORDINARY purposes

55
Q

implied warranty of fitness for A PARTICULAR PURPOSE elements

A

1) buyer has a particular purpose
2) buyer is relying on seller to select suitable goods
3) seller has REASON TO KNOW of purpose and reliance

56
Q

for implied warranty of fitness for A PARTICULAR PURPOSE does seller need to know that buyer needs the goods for particular purpose

A

YES has to have reasons to know B’s purpose and reliance

57
Q

what are the 5 issues for limitations on warranty liability

A

1) SOL
2) Privity
3) Disclaimer
4) Limitation on remedies

58
Q

what is the SOL for warranty liability

A

4 years

59
Q

when does the SOL for warranty liability begin to run

A

when TENDER OF DELIVERY is made

60
Q

does SOL for warranty liaiblity begin to run when B learns of product defect

A

NO at time tender of delviery is made

61
Q

only things need to know for privity

A

1) privity of k: P and D k w/ each other

2) largely eliminated

62
Q

does buyers examination of goods effect implied warranties

A

YES. no implied warranties as to defects which would be obvious on examination

63
Q

does buyers examination of goods effect express warranties

A

no

64
Q

can EXPRESS warranties be disclaimed

A

generally NO

65
Q

what are the 2 ways that IMPLIED warranties can be disclaimed

A

EITHER

1) CONSPICUOUS language of disclaimer, mentioning merchantability OR
2) “as is” or “with all faults’

66
Q

does “as is” or “with all faults” to disclaim implied warranties need to be conspicuous

A

NO

67
Q

what does limitation of remedies do for warranties

A

does NOT eliminate warranties, simply limits or sets recovery for any breach of warranty

68
Q

can seller LIMIT remedy of an express warranty

A

yes. Just cannot DISCLAIM express warranty

69
Q

how to limit remedies of warranties

A

general test: unconscionability

Primia facie unconscionable: if breach of warranty on consumer goods causes PERSONAL INJURY

70
Q

what is the unconscionability test for limit remedies of warranties

A

Primia facie unconscionable: if breach of warranty on consumer goods causes PERSONAL INJURY

71
Q

can parol evidence be used to apply to subsequent agreements?

A

YES
- parol evidence only applies to written or oral agreements made PRIOR to the writing, as well as to any oral expressions contemporaneous with writing, are inadmissible to vary the terms of the writing

72
Q

is something allowed in the parol evidence rule made PRIOR to agreement if it states a condition precedent before the K is to apply

A

YES
-x/c to parol evidence is to show a condition precedent and therefore a K is not enforceable b/c it was never formed if the condition precedent is not met

73
Q

what does FOB mean and who has to pay it

A

Free On Board: if it follows the sellers location than the seller does not have to pay.

74
Q

what is the parol evidence rule

A

prohibits admissibility of extrinsic evidence that seeks to vary, contradict, or add to a complete interrogation

75
Q

when does parol evidence not apply, and extrinsic evidence is allowed

A

1) uncertainty or AMBIGUOUS terms
2) extrinsic evidence of a CONDITION PRECEDENT
3) course of dealing
4) usage of trade
5) course of performance
6) formation defects (fraud, duress, mistake, illegality)

76
Q

Latent ambiguity where 1 party knows

A

when 1 party knows ambiguity and other part does not, K is enforced according to INTENT OF PARTY W/O KNOWLEDGE OF ambiguity

77
Q

does ambiguity alone void k

A

No

78
Q

Accord def:

A 
executory agreement (duties not yet performed) discharge an existing contractual duty
- need consideration (lessor value of prior K allowed, different, pay third party)
  • Not discharge prior K, suspends K for terms of new accord
79
Q

satisfaction def

A

performance of accord agreement

- discharges both original K and accord K

80
Q

Can showing a condition precedent be allowed of K for parol evidence rule

A

Yes, a condition precedent to the existence of a contract is allowed.

bar Contracts (8 decks)

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