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25 Cards in this Set
- Front
- Back
WORDS OF THE PARTIES
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Intro card
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What does the Parol Evidence rule operate to do?
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It keeps out evidence of a prior agreement (oral or written) that contradicts a later writing. Policy is to respect a later writing.
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What's the difference between SOF and PER?
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1. PER problem requires a writing.
2. SOF problem entails an oral agreement (and whether it's enforceable). |
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What are the exceptions to the PER?
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1. To correct clerical error
2. Establish defense against formation of a K (mistake) 3. To explain or interpret the written K 4. Supplement a partially-integrated writing (such as the later writing that doesn't appear complete on its face) |
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What's a "merger clause"?
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Ex. A written lease says "This K is limited to the terms set forth herein." Signifies that the writing can't be supplemented.
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Does PER have anything to do with what happens AFTER an agreement has been reduced to writing?
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No, the rules on modification apply. PER looks backward, not forward.
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Conduct of the Parties (from most to least important)
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1. Course of Performance - what the parties have done under this K
2. Course of dealing - what the parties have done under their earlier Ks with one another. 3. Usage of trade - what others in the trade do under similar circumstances |
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Under Art 2, what are examples of a Seller's warranties of quality?
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1. Express warranties
2. Implied warranty of merchantibility 3. Implied warranty of fitness for the buyer's particular purpose |
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What is and is not included in an express warranty?
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Included: statements of fact, promises, and descriptions of the goods
Not included: mere expressions of opinion |
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Definition (and key to remember) of implied warranty of merchantibility?
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Goods are fit for their ordinary purpose.
Key: S is a merchant who deals in goods of the kind b/c this is associated with special knowledge about the particular goods involved. |
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Definition (and key to remember) of fitness for the buyer's particular purpose?
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The goods are fit for the buyer's particular purpose.
S must know/have reason to know that B has special purpose & is relying on S to select suitable good (S doesn't have to be a merchant!) |
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What are the limitations on Warranty Liability in a Sale of Goods Contract?
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1. Contractual limitations
2. Privity of contract |
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Examples of contractual limitations?
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1. Disclaimer: S can disclaim implied (not express) warranties.
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How can S disclaim implied warranties?
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Through "as is" or "with all faults."
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What if S doesn't use "as is" or "with all faults"?
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Without those magic words, the disclaimer must be conspicuous through bold face, different type font, etc.
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What are the elements of Limitatiosn of Remedies?
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1. Doesn't eliminate any warranty, just limits recovery for breach
2. Can even limit remedies for breach of an express warranty |
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What is the TEST for the limitation of remedies?
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Judge test: unconscionability. With consumer goods, limiting B's remedies for personal injury is presumed to be unconscionable.
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Privity of K is also a limitation on warranty liability.
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In TX, the court decides if the warranty extends to a 3rd party.
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RISK OF LOSS (ROL) FOR SALE OF GOODS K
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Into Card
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When goods are lost or damaged w/o fault of either B or S, who bears the ROL?
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1. If S bears the risk, S must provide new goods to B at no additional cost or be liable for damages for breach of K.
2. If B bears the risk, B must still pay S the full K price |
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Lay out the hierarchy determining who bears the ROL (top to bottom)
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1. Agreement of the parties controls.
2. Breach: breaching party is liable, even if loss is unrelated to the breach 3. Delivery by common carrier: ROL shifts to B when S completes its delivery obligations. 4. If delivery not by common carrier, the answer depends on whether S is a merchant. |
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Under a shipment K, when is delivery obligation complete under common carrier?
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S must get the goods to a common carrier, make reasonable delivery arrangements, and let B know. That's it.
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Under a destination K, when is delivery obligation complete under common carrier?
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S must get the goods to destination of the B.
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If the K provides for FOB (free on board) followed by the name of a city, how do you determine if a shipment K or destination K?
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1. If name of the city is where the S is located, the K is a shipment K.
2. If name of the city is 'any other city' then K is a destination K. |
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Under the "whether S is a merchant" for ROL, what are the rules?
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1. If S is merchant, S bears ROL until B takes possession (b/c S in better position to insure against ROL)
2. If S is non-merchant, ROL shifts when S "tenders" the goods. |