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Flashcards in 3. Terms Deck (33)
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1

May parol evidence be considered to change or contradict terms in a written deal?

No

2

May parol evidence be considered if there was a clerical error in reducing the agreement to writing?

Yes

3

May parol evidence be considered to determine whether a contractual defence exists?

Yes

4

May parol evidence be considered to resolve ambiguities in the written agreement?

Yes

5

May parol evidence be considered to add to a written agreement?

Yes, as long as the agreement is a partial integration and the additional terms sought to be introduced would usually be in a separate agreement

6

What are the three ways the court can use conduct to fill gaps in a written agreement?

1. Course of Performance

2. Course of Dealing

3. Custom and Usage

7

What is course of performance?

Conduct of the same parties, pursuant to the same contract

8

What is course of dealing?

Conduct of the same parties pursuant to a different agreement

9

What is custom and usage?

Conduct of different parties in the same industry

10

What are the two types of contracts which concern a seller's delivery obligations?

1. Shipment Contract

2. Destination Contract

11

How can you tell the difference between a shipment and a destination contract where not explicitly told?

FOB, followed by the seller's city = shipment

FOB, followed by any other city = destination

12

When does a seller complete his delivery obligations in a shipment contract?

When he:

1. Gets the goods to a common carrier

2. Makes reasonable arrangements for delivery, and

3. Notifiies the buyer

13

When does the seller complete his delivery obligation in a destination contract?

Not until the goods arrive at their destination

14

What are the three things which may determine risk of loss?

1. Agreement

2. Breach

3. Common carrier

15

How does the agreement determine risk of loss?

By expressly providing for it

16

How does breach determine risk of loss?

The breaching party is liable for any uninsured loss, even if the breach is unconnected to the loss

17

How does common carrier delivery determine risk of loss?

Risk of loss passes when a seller completes its delivery obligations pursuant to a shipment or destination contract

18

If there is no agreement, breach, or common carrier delivery, when does risk of loss shift if the seller is a merchant?

Upon buyer's receipt of the goods, i.e. they are in possession

19

If there is no agreement, breach, or common carrier delivery, when does risk of loss shift if the seller is not a merchant?

When the seller tenders the goods, i.e. makes them available to the buyer

20

Is whether or not the buyer is a merchant relevant to a risk of loss question?

No

21

What is an express warranty?

Words that promise, describe, or state facts

22

What else can seller do to make an express warranty?

Show buyer a sample

23

What triggers the implied warranty of merchantability?

The seller is a merchant, i.e. deals in goods of that kind

24

What is the implied warranty of merchantability?

Goods are fit for ordinary purposes

25

What three things trigger the implied warranty of fitness for a particular purpose?

1. Buyer has a particular purpose

2. Buyer relies on seller to select suitable goods

3. Seller has reason to know of purpose and reliance

26

What is the warranty of fitness for a particular purpose?

Goods are fit for that specific purpose

27

What warranties does an examination of goods affect?

Implied warranties only

28

How does an examination of goods affect limited warranties?

There are no implied warranties as to defects which would be obvious upon examination

29

What warranties can be disclaimed?

Implied warranties only

30

How is a warranty disclaimed?

Clear language disclaiming the warranty, or selling the goods "as is" or "with all faults"