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82 Cards in this Set
- Front
- Back
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Parol Evidence Rule
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If an agreement is reduced to an integrated writing parties may not introduce extrinsic evidence of prior or contemporaneous events that contradict or supplement the terms of the writing.
-If partially integrated and supplemental, than it is not barred |
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Always Barred by Parol Evidence Rule
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-Parol Evidence that Contradicts the writing UNLESS attesting to one of the defenses
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Never Barred by the Parol Evidence Rule
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-Oral and written agreements that come after
-Simultaneous writings -Evidence to show that the effectiveness of an agreement was subject to an oral condition precedent -Evidence to show that the agreement was invalid due to one of the defenses...Fraud Exception |
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Fraud Exception to the Parol Evidence Rule
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Some courts limit the eveidence to fraud in the execution...but some courts extend the exception to fraud in the inducement as well
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Fully Integrated
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Final and Complete
Final=It has everything Complete=It is the last agreement |
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Partially Integrated
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Final but not complete...it deals with some but not all aspects of a transaction between the parties
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Traditional Approach Determining Integration
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Traditionalis approach-4 corners, looks strictly at the K, if the writindg is final on its face than integrated
EXCEPTION Parol Evidence may still be used to explain a writing only if it is ambiguous on its face |
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Contextualist/UCC/Restatement
Determination of Integration |
Must look at entire course of dealings to determine whether it is fully integrated
-May use parol evidence to explain a writing dependent of integration status |
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Fully Integrated v Partially Integrated
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-Fully Integrated only allows evidence for a defense
-Partially integrated allows for supplementary evidence but not contradictory |
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Collateral Agreement Exception
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An agreement is not completely integrated
A consistent additional term will be admitted if there is separate consideration for it OR it is something that might be naturally |
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UCC Parol Evidence
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Takes everything into account, dealings are number 1
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CISG Parol Evidence Rule
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There is none....Gotcha Bitch
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Implied Terms
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Terms that are not expressly agreed to but become part of the K
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Implied in Fact
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terms implied by the parties themselves through custom and conduct
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5 defenses to parol evidence rule
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Mistake
Undue Influence Fraude Duress Incapacity |
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Implied in Law
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Terms made part of the agreement by operation of the rules of law
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Default Rules vs. Immutable rules
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Default Rules- Rules included unless specified otherwise
Immutable Rules-Rules that cannot be changed |
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UCC Good Faith
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Honesty in fact and observance of reasonably commmercial stanards of fair dealing in the trade
-subjective honesty and objective reasonableness |
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UCC 2-306
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No tender or demand can be disproportionate to any agreed upon estimate unless done in good faith...
-to protect against loss is not sufficient |
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Rest. 205
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Every K imposes upon each party a duty of good faith and fair dealing in performance and enforcement
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Good Faith Descriptors
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-Fully disclosing material facts
-Substantially performing without knowing deviating from specifications -Refraining from abuse of bargaining power -acting cooperatively -acting diligently -acting with some reason -interpreting K language fairly -accepting adequate assurances ....do anything that will have the effect of destroying the right of the other party to receive the fruits of the K -Subjective bad faith trumps objective reasonableness |
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At will Employment
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May be terminated for any reason at all except in bad faith demonstrated by:
-Any termination that deprives of earned compensation -Good faith evaluation -Additional consideration requires just termination -Promissory estoppel |
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UCC 2-313 Express Warranty
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Term implied by law
Created by any affirmation of fact by seller that relates to the goods and becomes a part of the bargain -Any description that is made part of the basis of the bargain -sample or model that is part of bargain -not created by opinion of value by seller -Cannot write out...immutable |
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UCC 2-314 Implied Warranty of Merchantability
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If sold by a merchant than goods shall be merchantable:
-pass without objection in trade under the description -Are fit for the ordinary purpose for which the goods are used -adequately packaged and labeled -does not vary among units -conform to label -other implied warranties from trade usage -Can be disclaimed if mentions merchantibility |
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UCC 2-315 Implied Warranty of Fitness
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-If Seller at the time of K'ing has reason to know any particular purpose for which the goods are required there is an implied warranty that goods shall be fit for such pupose
-usually signaled with buyer affirmation -can be disclaimed by:"there are no warranties that extend beyond the description of the face here of |
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Minority
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If under the age of majority K is voidable up until the age of majority at which point the minor has a reasonable time to either dissafirm or ratify
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Common Law Minority
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Responsiblie to return to the party what is left of the K at the time of voidance, absent any willful destruction in which they may not be able to dissafirm
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Benifit Rule
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Recovery will be reduced by benefit received...may take into account depreciation
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Necessaries (Minority)
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Minors are liable for necessaries
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Rest. 13-Guardianship
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If under guardianship not considered to have capacity
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Rest. 15 Incapacity
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A K is VOIDABLE if entered into by a person of mental illness or defect test:
1) Subjective- is unable to understand in reasonable manner the nature and consequences of the transaction (cognitive) 2) Objective-unable to act in a reasonable manner in relation to the K and the other party knows this (volitional) HOWEVER if entered into fairly and if the other party is without knowledge then avoidance terminates to the extent that the K has been erformed or circumstances have changed so that it will be unjust |
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Rest. 175 Duress
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If a party's manifestation of assent is induced by an improper threat that leaves the victim no reasonable alternative than the K is void
-Look at legal action, and alternative souces -inducement is subjective to that person...substantial contribution |
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Rest. 176 Improper Threat
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-Threaten with a crime or tort
-Threaten criminal prosecution -bad faith threat of the use of civil processes -threaten breach of good faith and fari dealing -not on fair terms and of no benefit to the breacher -for illegitimate means -Economic duress voidable |
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Rest. 177 Undue Influence
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If a party's manifestation of assunt is induced by excessive ressure to overcome the will of someone who is unduly suceptible than the K is voidable.
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7 factors of Excessive pressure
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1)Inappropriate time
2)Inappropriate place 3)Insistent demand that the deal be done now 4) Extreme emphasis on consequence of delay 5) The use of multivple persuaders 6) No time to consult professionals 7) No third party guidance |
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Rest. 159
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A misrepresentation is an assertion that is not in accord with the facts
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Rest. 163 Fraud in the execution
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A K is void if there is a 1) misrepresentation as to the character or essential terms of the K 2) induces assent 3) that the victim neither knows nor has reasonable opportunity to know the character of the essential terms
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Rest. 164 Fraud in the Inducement
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A K is VOIDABLE if
1) a manifestation of assent is induced 2) by a material (likely to induce reasonable person) or Fraudulent (knows or is negligent to the truth) 3) That the other party is justified in relying -special relationship -special skill in subject matter -particular susceptibility |
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Third party misrepresentation
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K is voidable if justified in relying unless the other party in good faith and without reason to know gives value and relies on the transaction
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Non-Disclosure Classic View
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Non-Disclosure is not a defense
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Modern View Non disclosure
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Non-disclosure becomes a misrepresentation:
-Where party knows that disclosure of a fact is necessary to prevent some previous assertion from being a misrepresentation -disclosure would correct a basic assumption of the other party -disclosure would correct a mistake of the other party as to the contents of the writing -entitled to know the fact because of a special relationship -new knowledge Acknowledge difference between information known as oppose to gained with resources |
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Unconsscionability
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Court will fink a K unenforceable if there is an absence of meaningful choice on the part of one of the parties together with K termas that are unreasonably favorable to another party
-court may choose to revforce remainder without term or limit term |
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Procedural Unconscionability
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Lack of choice by one party or some defect in the bargaining process
-deception -disparity in power -awareness of infirmity -wiff of bad faith |
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Substantive Unconscionability
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A lack of fairness of the terms of the bargain
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Public Policy
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What is the statute?
Connect to a significant public body. Balance with the freedom to K |
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Rest. 151 Mistake
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A belief that is not in acccord with the facts
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Rest. 152 Bilateral Mistake
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1) Where mistake of fact of both parties at the time of K
2) Was made as to a basic assumption on which the K was made 3) Has a mterial effect on the agreed exchange of performances 4) Is voidable unless he bears the risk -market conditions and financial standing not sufficient |
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Rest. 153 Unilateral Mistake
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1) Where a mistake of one party was made at the time of K
2) To a basic assumption on which he made the K 3) has a mterial effect on the agreed exchanges that is adverse to him 4) K is made voidable as long as he did not bear the risk AND effect of mistake makes enforcement unconscionable OR other party has reason to kno of the mistake or fault Or his fault caused the mistake -Wiff of Sulfur |
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Rest. 261 Impracticability
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-The occurence of an event that the non-occurence of was a basic asumption of now makes performance unduly burdensome
-must have not boar the risk -must have not not been at fault -no duty to render performance |
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UCC 2-615 Seller delivery impracticability
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non delivery is not a breach immade impracticable by a contingenecy that the non occurence of was a basic assumption on whch the K was made...seller may allocat any way he sees reassonable
-Increased cost or market fluctuation is not enough |
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Impossibility
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Deathe or incapacity, failure to come into existence or destruction of a specific thing, or governmental regualation of a person necessary for the performance which the non occurence of was a basic assumption on which the K was made
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UCC Impossibilty
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If goods destroyed before risk passes to buyer than K is voided, or if partial buyer chooses
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Frustration of purpose
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Where after a K is made, a party's principal purpose is frustrated without fault of his own, by an event the non-occurence was a basic assumption on which the K was made, remaining duties to render performance are discharged
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Rest. 89 Modification
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A promise modifying an existing K requires consideration unless
1)Fair and equitable in view of circumstances not anticipated at time of K 2) Statute 3) Exten justice requires enforcement in view of material change of position in reliance on the promise |
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UCC 2-209 Modification
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An agreement modifying K does not need consideration
-Between merchants you can K for a private SOF...NOM -SOF must be satisfied unless the NOM right has been mutually waved -can be used in situtations that do not rise to the level of excuse |
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Breach
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Any unjustified or unexcused failurre to perform all or any party of what is promised in a K
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Forfeiture
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the denial of compensation that results when the obligee loses its right to the agreed exchange after it has relied on the exchange
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express condition
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a term or event upon the performance of which the K explicitly makes another term's performance conditional
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Constructive Condition
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A term or event upon the performance of which the performance of another term is construed to be conditional
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Rest. 241 Test for a material breach
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-Extent injured party is deprived of teh benefit expected
-Extent to which the injured party can be adequately compensated for the part of the benefit of which he will be deprived -The extent to which the party failing to perform will suffer forfeiture -Likelyhood of cure -Good faith of breaching party |
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Rest. 242 Test for totality of breach
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Rest. 241 Factors
+Delay will prevent sustitute performance/cure +"Time is of the essence" |
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Rest. 250 Anticipatory Repudiation
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A repudiation is a statement by one party indicating she will commit a total breach giving rise to damages for total breach, discharge duties, or excuse the non-occurence of a condition
-usually clear and unequivocal -mere doubts are not sufficient -may be effectively retracted as long as other has not relied on or changed postion relative to the repudiation |
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Rest. 251 Adequate Assurances
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Where reasonable grounds arise to believe that one party will committ a total breach adequate assurance may be demanded and if reasonable suspend performance for which he has not already received the agreed exchange until he receives such assurance
-if assurances are not given in a reasonable time, acts as repudiation |
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Reasonable grounds for assurances
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-financial insecurity
-failure to perform important obligations under the K -failure to perform under related K's |
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UCC Assuances
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Same except must be in writing...
Cannot be based on past dealings -after receipt 30 day max for performance |
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Expectation Damages
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Gain that P would have realized if the K had been fully performed as promised by both partis
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Expectation Equation
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Loss in Value + Other Loss(Consequential/Incidental)-Cost Avoided-Loss Avoided
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Loss in Value
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Difference between what value should have been received and what if anything was received
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Real Estate LIV
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Buyer Breach-K Price-FMV
Seller Breach-FMV-K Price |
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Construction Variation
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Net Profit+Unreimbursed Expenses
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Consequential Damages
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Injury to persons or property caused by breach
-must be foreseeable -must be reasonably certain -must be caused by brache -must take reasonable efforts to mitigate |
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Incidental Damages
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Additional costs incurred after the breach in a reasonable attemet to avoid loss, even if unsuccessfule
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Cost Avoided
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Additional expenditure saved after the breach in not having to perform
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Loss Avoided
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Resources Salvaged or reallocated that would have otherwise been devoted to K
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Cannot Recover
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Lawyers Fees (EXCEPT CISG)
Punitive Damages -unless insurance, bad faith Emotional Distress -common carriers, death stuff |
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Reliance Damages
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Put P in the same position as she was in before the K was made
=Direct/Essential + (Consequential&Incidental- loss avoided -Done becaue of causation and predictability problems associated with expectation damages |
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Direct essential
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Costs incurred as a part of the performance obligation
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Consequential/Incidental
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Expenses incurred on the reliance on the K and because of the breach
-reasonably foreseeable |
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Loss avoided
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Net loss of breaching party if performed in full
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Restitutionary damages
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Aime to recreate the status quo...unjusyt enrichment
K price or market value -in cases of defenses Market value restitution |
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Agreed Remedies
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-It is within the power of the parties to agree to compromise disputy....agreeing on the remedy
-must act to liquidate damagaes as oose to punish -Must be a reasonable forecase of compensation for harm and difficult to estimate |
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Specific Performance
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When Damages are inaeequate...
Difficulty in proving with reasonable certainty Difficult in procuring substitute performance Difficulty of collecting damges REAL ESTATE |
