Flashcards in Page 22 Deck (22):
What is an accord?
A new agreement between two parties to an existing contract where one agrees to accept a different performance than the original (agreement that settles a dispute: compromise)
If you owe someone $1000 under a contract and then you promise to give your car in settlement, and the person agrees, what is that called?
Sending a check for less than what was owed and writing "payment in full" is an offer to what?
What are some of the stipulations of an accord?
Must be completely performed before old duties are discharged, and must be clear that offeror seeks a total discharge
If an accord has an offer seeking a total discharge, but that wasn't clear, what is the result?
Payment made and accepted are just treated as part payment
If an accord happens, and a party attempts to reserve his rights (like scratches out "payment in full" and cashes check) what is the majority approach?
The reservation is not accepted
What are the elements of accord?
Offered in full settlement, and needs new consideration
Can a good-faith dispute about how much was owed between the parties be considered new consideration for an accord?
What is a liquidated claim?
The amount or the existence of the claim is undisputed
What is an unliquidated claim?
A dispute about liability, amount due, or things like method of payment
If you retain a check for an unreasonable amount of time, what has happened?
You have accepted it, and same for exercising dominion over cash-like things
What is satisfaction?
Discharge of a legal duty by paying what is due (Promisor tenders performance and promisee accepts)
What is the effect of a satisfaction?
It discharges the accord and the original contractual duty
What is the parol evidence rule?
CL rule that a writing intended by the parties to be final cannot be modified by earlier or contemporaneous agreements that might add to, change, or contradict the writing
When does the parol evidence rule come into play?
When one party tries to influence the effect of a written document by offering extrinsic evidence to add to it or explain its terms
What is extrinsic evidence?
Things not contained in the writing
How do you know if there is a final written agreement?
- if parties say it is final, there was an integration, or merger cause = final
- is agreement is clearly incomplete = not final and parol evidence can be introduced
If a situation is ambiguous and it is really unclear whether a writing is final, what test is used by the courts?
Williston test: to see if reasonable people similarly situated would have expected the prior negotiations to survive the writing
When is parol evidence always admissible?
To show defenses of the duress, fraud, mistake, ambiguity, formation defects
Can you use parole evidence to negate formation of a contract if you were threatened into signing it?
Yes, because that would show the defense of duress
Can Parol evidence be used to explain an ambiguity in a contract?
Yes, ie: if A contract just said fruit, you can explain it by showing you were talking about apples