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53 Cards in this Set
- Front
- Back
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Parol Evidence |
Limits Admissibility of Prior Expressions or contemporaneous (with signing)oral statements Applies to writings Final Contract is Most Reliable |
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Parol Evidence Test When would it be raised |
Final Written Contract Court determines contract is final between parties Either Oral statement contemporaneous with signing or earlier written or oral statement by the parties
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Integration |
Written agreement intended to be the final contract between the parties.
Does not have to be complete
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If there is complete intigration |
Statements are inadmissible to contradict or supliment |
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If there is partial intigrationq |
In admissible if the evidence would contradict a term of the writing
Admissible to supplement the contract |
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The Parol Evidence Rule does not apply regardless of completeness |
Statements that contradict contract to show mistake in integration (clerical error)
To show Defense to contract formation
To show condition precedent
To show consistent collateral contract normally not included in integration
To clarify ambiguous terms |
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Parol Evidence Rule does not apply if partial integration |
To add consistent terms
Sometimes to show the existence of ambiguity |
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Merge Clause |
Indicates that the contract is a final integration of the agreement between the parties |
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Reformation |
Equitable action to modify a written contract to reflect the true intent of the parties |
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Interpreting Terms |
Four Corners Plain Meaning Liberal Approach |
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Four Corners |
Integration governed by the four corners of the contract itself No extrinsic evidence admissible to determine ambiguity |
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Plain Meaning |
Court will consider evidence of the context of the agreement to determine ambiguity but not evidence of preliminary negotiations |
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Liberal Approach |
Court will consider evidence of preliminary negotiations to determine ambiguity |
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Maxims of Interpetation |
As a Whole Primary Purpose Words |
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As a whole |
Writing is interpreted as a whole and all writings are part of the same transaction are interpreted together |
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Primary Purpose |
If the primary purpose of the parties is ascertainable, that purpose is given great weight |
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Words |
Specific terms and exact terms are given greater weight than general language
Seperately negotiated or added terms are given greater weight than standardized terms or other terms not separately negotiated (pre-printed forms)
Ambiguities Construed Against the Drafter
Prevailing meaning controls unless a different intention is manifested
Technical Terms and Words of Art are given their technical meaning when used in a transaction within their technical field |
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Course of Performance |
Given less weight than express terms Wherever reasonable Used to manifest intent of the parties Given greater weight than course of Dealing or Usage of Trade |
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Course of Dealing |
Different Contracts between same people Given greater weight than Usage of Trade
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Usage of Trade |
Other different but similar contracts between different people in the trade |
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UCC Default Provisions |
Used for sales of goods where terms are left out
Delivery obligation Risk of Loss
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Delivery Obligations |
Time for Delivery Place for Delivery Common Carrier or not Merchant Seller or not |
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Time for delivery |
Within a Reasonable time |
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Place for delivery |
SELLER's place of business or if none Seller's Residence
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Delivery by other than common carrier |
Merchant Seller - Delivery obligation complete when the buyer receives goods at seller's place of business or location of goods known to buyer
Non-Merchant Seller - Seller's delivery obligation is complete when the seller tenders the goods (tells the buyer where the goods are and how to get them) |
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Delivery by common carrier |
Third Party Carrier
Shipment Contracts
Destination Contracts |
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Shipment Contracts |
FOB Seller's City Presumed when contract is silent and common carrier required. Obligation of Seller is complete when delivered to carrier with Arrangements for delivery, Necessary documentation and Prompt notification to seller. Failure to notify is grounds for rejection only where there is a material delay or a loss ensues |
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Destination Contracts |
FOB city other than seller's Seller obligated to deliver goods to a specific location Obligation not satisfied until goods actually arrive at the final destination |
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Risk of Loss |
Agreement of the Parties Breach Non-Common Carrier Common Carrier Warranties of Quality Price Payment UCC Parol Evidence Rule |
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Agreement of the Parties |
Controls as to risk of loss |
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Breach |
Breaching Party is liable for any uninsured loss even if the loss is completely unrelated to the breach |
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Non-Carrier Delivery Risk of Loss |
Seller bears risk of loss until completion of delivery obligation |
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Common Carrier Delivery Risk of Loss |
Shipment Contract - Risk of loss shifts to buyer when the seller delivers to the carrier
Destination Contract - Risk of loss does not shift until seller delivers at final destination |
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Warranties of Quality |
Express Warranty Implied Warranty Limitations on Warranties Third Party Beneficiaries
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Express Warranty of Quality |
Statement of Fact Promise Conduct (showing a sample or model) Statements of value or opinion are not express warranties |
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Implied Warranties of Quality |
Warranty of Title - Automatically implied Merchantability - Automatic for sales of goods by merchant of those goods |
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Warranty of Merchantability |
Requires Fitness for Ordinary Purpose - Implied in every contract for the sale of a good by a seller who is a merchant with respect to goods of that kind Includes limited definition of Merchant Includes Warranty against Infringement |
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Limited Definition of Merchant |
Must be in the business of selling goods of this kind |
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Warranty against infringement |
Goods shall be free of the rightful claim of any patent, trademark or copyright infringement |
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Implied Fitness for a Particular Purpose |
Goods must be fit for the particular purpose the buyer has in mind if the seller is aware of it |
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Contractual Limitations on Warranties |
Disclaimers Limitations of Remedies |
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Disclaimers |
Eliminates Warranties Not valid for Express Warranties Valid for implied warranty of merchantability of conspicuous |
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Conspicuous |
Different Font or Print than the rest of the contract |
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limitations of Remedies |
Must be Conscionable Unconscionability must be Prima Facia |
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Third Party Beneficiaries of Express or Implied Warranties |
UCC Alternatives A,B and C |
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Alternative A |
Most states have adopted this Narrow version
Extends to Any natural Person In the Family or Household Of the Buyer or Guest
Must be reasonable to expect that such a person may use, consume or be affected by the goods
Must have been injured in person by breach of warranty |
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Alternative B |
Extends to ANY Natural Person reasonably expected to Use, consume or be affected by the goods who is injured in person by the breach |
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Alternative C |
Any Natural Person who is injured etc. (removes 'in person' requirement |
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Price |
Reasonable at time of delivery if
Nothing said about price or Left for the parties to agree on and they fail to agree or Price is to be fixed in terms of some agreed market or other standard as set by a third person or agency and is not set |
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Price fixed by buyer or seller |
Must be in good faith |
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Price payable in goods |
If each party is a seller of goods |
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Payment |
If not specified - at time and place where buyer is to receive the goods |
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Oral condition to performance not written in contract. eg contractor will take job if other job falls through. Is evidence of condition admissible? |
Yes, extrinsic evidence is allowed to establish an oral condition too the parties performance under the contract |
