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18 Cards in this Set
- Front
- Back
What is the rule for various degrees of integration of parol evidence?
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Not an Integration: can Explain the writing.
Partial Integration: can Explain and Supplement the writing. Complete Integration: can Explain, Supplement, and Contradict the writing. |
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What are the two questions to be asked in order to classify agreements by the admissability of Parol Evidence?
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First, is the writing an integration? It's an integration if it's FINAL.
If so, is the writing a complete or partial integration? There are four tests used to answer this question. |
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What are the tests for determining if a writing is a complete or partial integration? What governs?
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Conservative Tests:
Wigmore: Writing is a complete integration if the PE "deals at all" with the subject matter of the writing. Williston (MAJORITY): Writing is a complete integration if the PE "normally and naturally" would have been included in the writing. Liberal Tests: UCC 2-202 (MAJORITY, for goods): Writing is a complete integration only if reasonable parties would "certainly" have included the PE in the writing. Corbin: Parties intended to include the subject of the PE. Court is given discretion to consider all evidence "logically relevant." |
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What are the policy justifications for liberal and conservative tests for judging whether a writing is a complete integration?
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Liberal: Honor the intention of the parties.
Conservative: Preserve the integrity of the writing. |
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What is the significance of a merger clause to a writing?
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They are so common that they are not dispositive w.r.t. excluding Parol Evidence. The absence of a merger clauses, however, is strong evidence that the writing is not a complete integration, or perhaps not an integration at all.
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What is the definition of an Integration?
(the terms illuminate the "exceptions" to the PE rule.) |
A writing embodying a single, valid, enforceable contract and thereby superseding prior and contemporaneous parol terms.
Collateral Agreement Consistent Oral Conditions Precedent Proof of facs triggering Enforceability Doctrine Subsequent Oral Modification |
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What are the requirements for an Incorporation by Reference?
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"A clear reference to a document, custom, or practice that manifests an intent to include the referent." (a passing mention is no good)
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What are the three classes of Incorporation by Implication?
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1) Implied-in-fact, based on actual intent of the parties
2) Implied-in-fact, based on interpretive intent 3) Implied-in-law |
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What are the elements of an Incorporation, Implied-in-Fact, based on the actual intent of the parties?
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The excluded terms must have been so clearly assumed in the minds of the parties that they were not included in the writing. Must be proven by a preponderance of the evidence.
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What are the elements of an Incorporation Implied-in-Fact based on the interpretive intent of the parties?
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1) an unforeseen development occurs (subjective)
2) impact of the unforeseeable event makes the implication necessary to avoid a grossly unfair deal. 3) reasonable contracting parties would have incorporated the meaning in question had they foreseen the development (objective) |
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What are the elements of an incorporation Implied-in-Law?
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Judge's discretion: should it be let in?
UCC-like gap fillers are allowed to effectuate some public policy. - prior actions in this deal - prior sequence of acts in other contracts - trade usage Cannot imply anything that contradicts the language of the written agreement. |
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Once the text to be interpreted is settled, what are the four steps of the actual interpretation?
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1) Identify the Possible Meanings of the Language
2) Characterize Each Meaning by Type of Usage 3) Choose one of the Meanings 4) Construe the Term |
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What are the four theories for when extrinsic material may be taken into account in evaluating the meaning of a term?
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Objective Theory
1) text and context 2) if no plain meaning, then extrinsic Modified Objective Theory 1) text, context, and trade custom 2) if no plain meaning, then extrinsic UCC 2-202 1) text, context, trade custom, course of dealings of the parties, course of performance of the parties 2) if no plain meaning, then extrinsic Subjective Theory All meanings considered: text, contenxt, and extrinsic evidence: "any evidence which demonstrates a meaning to which the language is 'reasonably susceptible.'" |
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What are the types of usage, and when should each be used?
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General or Popular Usage
- always appropriate Limited or Trade Usage - both parties are members of the trade - one party was not a member of the trade, but knew of or had reason to know of the usage. - SoA: "The trade usage must be understood by the vast majority of members of the trade" vs. "the trade usage must be understood universally by members of the trade." Mutual Usage - agreement contains a glossary - parties had a common interpretation of the wording. Individual Usage - one party understands the text with a particular meaning. the other knows or has reason to know that the first understands the term in that way. |
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What are the primary methods for choosing among valid meanings of a contract term?
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Primary: Standards of Usage
* Williston 1) Mutual, if contains a glossary 2) General 3) Limited 4) Mutual, if no glossary 5) Individual * Corbin 1) Mutual 2) Limited 3) General 4) Individual |
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Secondary method for choosing amongst valid meanings: Canons of Construction (RDPWLACPEE)
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- K must be reasonable
- Course of dealings of the parties - Course of performance of the parties - The contract should be evaluated as a whole - The contract must be lawful - All parts of the contract should be effective - Contra Proferentum - Public Interest - Expressio Unius est Exclusio Alterius - Esjudem Generis |
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How can one construe the term, once its meaning is established?
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It can be:
- a mere recital of fact - a condition - a duty - a promissory condition |
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What are the secondary methods for choosing among valid meanings of a contract term?
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Secondary: Canons/Maxims of Interpretation
- Reasonable Interpretation - Circumstances of Execution/Course of dealings of the parties - Contract as a whole - Lawful Interpretation - All parts should be effective - Contra Proferentum - Interpret against the draftsman - Public Interest - Subsequent Conduct/Course of Performance - Expressio Unius Est Exclusio Alterius - Esjudum Generis |