Third Issue: TERMS of the contract Flashcards
how to treat the parol evidence rule
like evidence
- can courts EVEN consider it
- not yes or no being allowed
- BUT PURPOSE being offered
triggering words for Parol Evidence Rule
1) FINAL K:
2) EARLIER words of one or both parties
do the words have to come BEFORE K for parol evidence rule
YES
policy for parol evidence rule
that the final written K replaces earlier agreements, neg. and convos.
how to remember that parol has no e?
because evidence has so many damn e’s there isnt enough for parol
vocab: integration
written agreement that court finds is he final agreement TRIGGERS PER
vocab: partial intergration
written and final, but not complete
vocab: complete intergration
written, final and complete
vocab: merger clause
k clause states “this is the complete and final agreement”
vocab: Parol evidence
- words of party (parties)
- BEFORE intergration: BEFORE AGREEMENT was put into writing
- oral or written
does the words need to be BEFORE agreement was put into written form for parol evidence rule to apply
YES
5 PER patterns
1) changing/contradicting terms
2) mistake in integration
3) defenses
4) ambiguity: explaining term in written rule
5) adding to the written deal
what is the general rule for PER and changing/contradciting terms
GR CANNOT use Parol evidence of earlier agreements cannot be CONSIDERED for the purpose of contradicting the terms of the written K
can parol evidence be allowed for MISTAKE in integration (clerical error)
YES, court may CONSIDER evidence of such terms for the LIMITED PURPOSE of determine w/e there was a mistake in integration
can parol evidence be allowed for DEFENSES (getting out of a written deal)
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
does the parol evidence rule PREVENT ambiguity (explaining terms in the written deal)
the PER DOES NOT prevent court from CONSIDERING evidence of earlier agreements to resolve ambiguities in the written K
what is the only time if partial integration matters
adding to the written deal
does the PER prevent court from considering evidence of earlier agreement as a source of consistent, ADDITIONAL TERMS
YES
x/c where the PER prevent court from considering evidence of earlier agreement as a source of consistent, ADDITIONAL TERMS
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
can conduct also be a source of contract terms
YES
what are the 3 forms of conduct the courts look to add to terms of contract
1) course of performance
2) course of dealing
3) custom and usage
course of performance when courts will allow conduct to be source of K
same people, same K
COURSE OF DEALING when courts will allow conduct to be source of K
same people, different but similar K
CUSTOM AND USAGE when courts will allow conduct to be source of K
different but similar people, different but similar contract
what are the 4 ucc terms in sales of good contracts that are DEFAULT TERMS
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
generally what does it mean when delivery obligations of seller of goods if delivery by COMMON CARRIER
what are the sellers DELIVERY OBLIGATIONS
do we care where the shit gets sent
NO THIS AINT UPS CLASS
when does delivery obligations of seller of goods if delivery by COMMON CARRIER come into facts
when S and B are at different places and use a third party to deliver
what is the rule for SHIPMENT K for delivery obligations of seller of goods if delivery by COMMON CARRIER
seller COMPLETES its DELIVERY OBLIGATION when it
1) gets the gods to common carrier
2) makes REASONABLE ARRANGEMENTS for delivery and
3) NOTIFIES buyer
in a shipment K for common carrier when does sellers oblgiation complete for delivery
seller COMPLETES its DELIVERY OBLIGATION when it
1) gets the gods to common carrier
2) makes REASONABLE ARRANGEMENTS for delivery and
3) NOTIFIES buyer
in a shipment K for common carrier is sellers obligation complete when it gets delivered
NOOOOOO only when
1) gets the gods to common carrier
2) makes REASONABLE ARRANGEMENTS for delivery and
3) NOTIFIES buyer
when does a seller complete delivery obligations of seller of goods if delivery by COMMON CARRIER: DESTINATION k’s
seller does NOT complete its delivery obligation until goods arrive at destination
how to determine if shipment K or destination K
FOB (city) as source for determing w/e shipment or designation K
what does FOB mean
Free on broad
what if it is FOB city and followed by city where the SELLER is or where goods are
means shipment K
when will you know it is a shipment K
if it is FOB city and followed by city where the SELLER is or where goods are
when will you know it is a designation K
where FOB followed by ANY OTHER city
what if the is a FOB followed by any other city than sellers city or where goods are located
designation K
what is the risk of loss problem
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
for UCC do what for MC answers that include the word TITLE
IGNORE THAT
what is the ORDER of the risk of loss
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”
what is easy way to remeber the order for determine who has the risk of loss
ABC’s
1) A:agrement
2) B:breach
3) C:common carrier
4) C:catch all
what is the catch all for determining where risk of loss lays
(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
Catch All: when does risk of loss shift form a NON-MERCHANT seller
when the S TENDERS the goods
what does tendering goods means
makes goods available
Catch-All: who do you look at for is a merchant for the
ONLY S merchant. If B is merchant is irrelevant
catch-all: when seller is a merchant when does it shift to buyer for risk of loss
on the B’s receipt of goods
what are the 3 types of warranties of qualities
1) express
2) implied warranty of MERCHANTABILITY
3) implied warranty of fitness for a PARTICULAR PURPOSE
what is express warranties of quality
words that PROMISE, describe or state facts
examples of express warranty
1) “all steel”
2) guaranteed to operate for 2 years
3) seller’s showing buyer a sample
does showing a sample or model to a buyer create an express warranty of quality
YES
where is the only time it matters where a merchant is the one that deals in this kind of goods to apply?
IMPLIED WARRANTY OF MERCHANTABILITY
what is the implied warranty of merchantability
1) seller is a merchant WHICH DEALS GOODS IN THAT KIND
2) warranty: gods are fit for ordinary purposes
what does it mean for implied warranty of marchantability
1) seller is merchant (dealer of goods in that kind)
2) goods are fit for ORDINARY purposes
implied warranty of fitness for A PARTICULAR PURPOSE elements
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
for implied warranty of fitness for A PARTICULAR PURPOSE does seller need to know that buyer needs the goods for particular purpose
YES has to have reasons to know B’s purpose and reliance
what are the 5 issues for limitations on warranty liability
1) SOL
2) Privity
3) Disclaimer
4) Limitation on remedies
what is the SOL for warranty liability
4 years
when does the SOL for warranty liability begin to run
when TENDER OF DELIVERY is made
does SOL for warranty liaiblity begin to run when B learns of product defect
NO at time tender of delviery is made
only things need to know for privity
1) privity of k: P and D k w/ each other
2) largely eliminated
does buyers examination of goods effect implied warranties
YES. no implied warranties as to defects which would be obvious on examination
does buyers examination of goods effect express warranties
no
can EXPRESS warranties be disclaimed
generally NO
what are the 2 ways that IMPLIED warranties can be disclaimed
EITHER
1) CONSPICUOUS language of disclaimer, mentioning merchantability OR
2) “as is” or “with all faults’
does “as is” or “with all faults” to disclaim implied warranties need to be conspicuous
NO
what does limitation of remedies do for warranties
does NOT eliminate warranties, simply limits or sets recovery for any breach of warranty
can seller LIMIT remedy of an express warranty
yes. Just cannot DISCLAIM express warranty
how to limit remedies of warranties
general test: unconscionability
Primia facie unconscionable: if breach of warranty on consumer goods causes PERSONAL INJURY
what is the unconscionability test for limit remedies of warranties
Primia facie unconscionable: if breach of warranty on consumer goods causes PERSONAL INJURY
can parol evidence be used to apply to subsequent agreements?
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
is something allowed in the parol evidence rule made PRIOR to agreement if it states a condition precedent before the K is to apply
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
what does FOB mean and who has to pay it
Free On Board: if it follows the sellers location than the seller does not have to pay.
what is the parol evidence rule
prohibits admissibility of extrinsic evidence that seeks to vary, contradict, or add to a complete interrogation
when does parol evidence not apply, and extrinsic evidence is allowed
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)
Latent ambiguity where 1 party knows
when 1 party knows ambiguity and other part does not, K is enforced according to INTENT OF PARTY W/O KNOWLEDGE OF ambiguity
does ambiguity alone void k
No
Accord def:
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
satisfaction def
performance of accord agreement
- discharges both original K and accord K
Can showing a condition precedent be allowed of K for parol evidence rule
Yes, a condition precedent to the existence of a contract is allowed.
