Terms Flashcards
(8 cards)
Rule for terms
When interpreting a contract, one must look at the document as a whole from the perspective of an objectively reasonable person. To determine the terms of the contract, courts will look at the express terms, implied terms, statutory terms, and court supplied terms of the contract. I will now analyze each of the terms within the contract
What is an express term?
Express terms are those articulated by the parties either orally or in writing. I must first determine which are applicable. After determining which terms are applicable, I will determine whether the contract was the final expression of the parties. In addition, I will analyze whether the terms were introduced prior to, contemporaneous to, or subsequent to the contract.
What is the rule for implied terms by circumstances?
Implied terms are those inferred from the particular circumstances of the parties and implied by the court. They are based on the unspoken understandings and expectations that each party brings to the transaction. Implied terms cannot contradict express terms.
What is a custom?
When a custom or usage is established, in absence of expressed provisions to the contrary, it is considered a part of a contract and binding on the parties though not mentioned therein, the presumption ebeing that they know of and contracted with reference to the custom or usage.
What are the Statutory Terms?
Statutory terms are those encoded by statute.
What is expressed warranty of merchantibility?
§ 2-313(1)(a)
Any affirmation of fact or promise made by the seller to the buyer which relates to the
goods and becomes part of the basis of the bargain creates an express warranty that the
goods shall conform to the affirmation or promise.
What is implied warranty of merchantability?
§ 2-314(1)
Unless excluded or modified, a warranty that the goods shall be merchantable is implied
in a contract for their sale if the seller is a merchant with respect to goods of that kind.
