Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Contracts > Terms > Flashcards

Terms Flashcards

1
Q

How are contracts generally construed?

A

In whole - with clauses subordinated to the general intent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

If a word has some ambiguity, how will courts generally construe it?

A

according to the word’s “ordinary” meaning unless the contract clearly states it was meant in a technical sense

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

If provisions seem to be inconsistent, what provision wins: written/typed or printed

A

the written or typed provisions prevail over printed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

If a court is faced with a potentially unenforceable contract - is the court’s goal to find it unenforceable or enforceable?

A

courts generally try to reach a determination that a contract is valid and enforceable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Against whom are ambiguities in a contract construed?

A

against the drafter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Do courts consider parties’ course of dealing and usage of trade and course of performance when construing terms?

A

yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

If rules conflict what is given greater weight: course of performance, course of dealing, and usage of trade OR express terms?

A

express terms

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

If rules conflict what is given greater weight: course of performance or course of dealing and usage of trade?

A

course of performance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

If rules conflict what is given greater weight: course of dealing or usage of trade?

A

course of dealing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is an “integration”?

A

when the parties to a contract

  1. express their agreement in a writing
  2. with the intent that it embody the final expression of their bargain
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is the effect of an “integrated” writing?

A

any other expressions - oral or written - made prior to the writing or contemporaneous to the writing are inadmissible to vary the terms of the writing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is the Parole Evidence Rule?

A

when the parties to a contract express their agreement in a writing with the intent that it embody the final expression of their bargain - any other expressions written or oral made prior to or contemporaneous with the writing are inadmissible to vary the terms of the writing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

If an integration is complete, can it be contradicted or supplemented?

A

No - Parol Evidence Rule

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

If an integration is only partially complete can it be contracted or supplemented?

A

the writing may not be contradicted

the writing may be supplemented by proving consistent additional terms

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Does the UCC presume all writings are complete or partial integrations?

A

Partial - and therefore able to be supplemented by providing consistent additional terms

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

If a party to a written contract wants to attack its validity can the party use extrinsic evidence?

A

Yes - party can argue the agreement never came into being b/c of:

  1. formation defects
  2. conditions precedent ot effectiveness
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is the effect of a “merger clause” on a contract?

A

recites that the agreement is the complete agreement between the parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Is parol evidence admissible if it is collateral and does not conflict?

A

generally yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is the Restatements of Contracts approach to collateral agreements and parol evidence?

A

Naturally Omitted Terms Doctrine

evidence of terms are allowed if they would naturally be omitted from the written agreeement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

When would a term be “naturally omitted” from an integrated agreement?

A
  1. it does not conflict with the written integration; and
  2. it concerns a subject that similarly situated parties would not ordinarily be expected to include in the written instrument
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

If a term is ambiguous or uncertain, can parol evidence be used?

A

Yes - but only to determine the meaning of the terms

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Does the parol evidence rule bar extrinsic evidence showing the “true consideration” paid?

A

NO

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Can parol evidence be offered to show subsequent modifications of a written contract?

A

YES

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Under Article 2, a party cannot contradict a written contract but may add consistent additional terms unless:

A
  1. there is a merger clause; or
  2. the courts find from all of the circumstances that the writing was intended as a complete and exclusive statement of the terms of the agreement
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What forms of extrinsic evidence may a party use under Article 2 to explain or supplement a written contract’s terms even if they are not ambiguous?

A

evidence of course of performance, course of dealing, and usage of trade

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What is the gap-filler for price?

A

reasonable price at the time of delivery

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is the gap-filler for place of delivery?

A

the seller’s place of business (if he has one) or the seller’s home

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What is gap-filler for shipment or delivery?

A

shipment or delivery is due in a reasonable timer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is gap-filler for payment?

A

payment is due at the time and place at which the buyer is to receive the goods

30
Q

What is gap-filler if assortment of goods is to be delivered?

A

assortment is at the buyer’s option - if buyer doesn’t choose assortment in a reasonable time the other party is excused from any resulting delay and may either proceed in any reasonable manner or treat the failure as a breach

31
Q

What is a noncarrier contract?

A

a contract that the parties did not intend the goods would be moved by a common carrier

32
Q

In a noncarrier contract, where the seller is a merchant, when does the risk of loss pass to the buyer?

A

when the buyer takes physical possession of the goods

33
Q

In a noncarrier contract, where the seller is NOT a merchant, when does the risk of loss pass to the buyer?

A

risk of loss passes to the buyer upon tender of delivery

34
Q

What is a carrier contract?

A

a sale in which it appears the parties intended the goods to be moved by a carrier

35
Q

In a carrier contract that authorizes the seller to ship the goods but does not require him to deliver at a particular location, when does risk of loss pass to the buyer?

A

when the goods are delivered to the carrier

36
Q

In a carrier contract that requires the seller to deliver the goods to a particular destination, when does risk of loss pass to the buyer?

A

when the goods are tendered to the buyer at the destination

37
Q

What is “F.O.B.” and when does risk of loss pass to the buyer?

A

“free on board” - risk of loss passes to the buyer when the goods are delivered at the named location

38
Q

What is “F.A.S.” and when does risk of loss pass to the buyer?

A

“free term alongside” - risk of loss passes to the buyer once the goods are delivered to the docks

39
Q

If a contract does not contain any term explicitly allocating the risk of loss, is it a destination contract or a shipment contract?

A

shipment contract

40
Q

If the buyer retains the rights to reject goods, when does the risk of loss pass to the buyer?

A

risk of loss passes to the buyer when the defects are cured or she accepts the goods in spite of their defects

41
Q

If the buyer revokes acceptance because goods are nonconforming, how do courts treat the risk of loss?

A

risk of loss rests on the seller from the beginning to the extent of any deficiency in the buyer’s insurance coverage

42
Q

If the buyer returns the goods to the seller, who bears the risk of loss?

A

the risk remains on the buyer while the goods are in transit

43
Q

If the contract is a sale on approval, when does the risk of loss pass to the buyer?

A

When the buyer accepts the goods

44
Q

If goods identified when the contract was made are destroyed, when can the contract be avoided?

A

goods are destroyed:

  1. without fault by either party; and
  2. before the risk of loss passes to the buyer
45
Q

If a contract is formed by the parties’ performance and relies on the “Battle of the Forms” provision - what terms are included in the agreement?

A

all the terms on which the writings of both parties agree

46
Q

Under common law, if contracts are being sent back and forth, and the parties’ performance ultimately forms the contract - what terms are included in the agreement?

A

the terms of the last communication sent to the party who performed

“Last Shot Rule”

47
Q

What is a “warranty of title”?

A

automatically included

any seller of goods warrants that the title transferred is good, that the transfer is rightful, and that there are no liens or encumbrances against the title of which the buyer is unaware at the time of contracting

48
Q

What is a “warranty against infringement”?

A

merchant seller regularly dealing in goods of the kind sold also automatically warrants that the goods are delivered free of any patent, trademark, copyright or similar claims

buyer who furnishes specifications for the goods to the seller must hold the seller harmless

49
Q

What is an “implied warranty of merchantability”?

A

every contract for sale by a merchant who deals in goods of the kind sold warrants the goods are merchantable

50
Q

What must goods do to be “merchantable”?

A

must be “at least fit for the ordinary purpose for which such goods are used”

51
Q

If seller didn’t know of defect or could not have discovered it, is he still subject to the implied warranty of merchantability?

A

YES - strict liability

52
Q

What is an “implied warranty of fitness for a particular purpose”?

A
  1. any seller, merchant or not, has reason to know the particular purpose for which the goods are to be used and the buyer is relying on the seller’s skill and jgmt to select suitable goods; and
  2. the buyer in fact relies on the seller’s skill or jgmt
53
Q

What is an “express warranty”?

A

any affirmation of fact or promise made by the seller to the buyer, any description of the goods, and any sample or model creates an express warranty if the statement, description, sample, or model is part of the basis of the bargain

54
Q

How does a statement become a “basis of the bargain” for purposes of “express warranty”?

A

need only come at such a time that the buyer could have relied on it when she entered into the contract - doesn’t have to rely though

55
Q

Can a seller disclaim a warranty of title and how?

A

Yes - only by specific language or by circumstances that give the buyer notice

56
Q

Can a seller imply warranties of merchantability and fitness for a particular purpose?

A

Yes - through specific disclaimers OR general disclaimers

57
Q

List the specific disclaimers for warranties of merchantability and fitness for a particular purpose

A
  1. merchantability: specific or modified by mentioning merchantability conspicuously
  2. fitness: only by a conspicuous writing
58
Q

When is a term considered “conspicuous” for purposes for disclaiming a warranty?

A

so written displayed or presented that a reasonable person against whom it is to operate ought to have noticed it

59
Q

List the general ways a seller can disclaim implied warranties:

A
  1. by general disclaimer language - “as is” “with all faults”
  2. by examination or refusal to examine - no warranty as to defects that a reasonable examination would have revealed
  3. By course of dealing/performance/trade usage
60
Q

How are “express warranties” disclaimed?

A

very difficult - must be construed as consistent as much as possible

61
Q

Can parties limit damages in their contract?

A

yes in the case of a breach of warranty

warranty disclaimers limiting damages for personal injury caused by a breach of warranty on consumer goods are prima facie unconscionable

62
Q

When must disclaimers of warranty or limitation on remedies be agreed to?

A

during the bargaining process (unless computer software)

63
Q

How are damages calculated for breach of warranty?

A

(value of goods accepted) - (value of goods as warranted) measured at the time and place of acceptance

64
Q

How are damages calculated for breach of warranty of title?

A

goods are reclaimed by true owner or lien holder

damages = value of the goods as warranted (usually purchase price)

65
Q

What is Alternative A of UCC § 2-318?

A

seller’s warranty liability extends to any natural person who is in the family or household of the buyer or who is a guest in the buyer’s home IF it is reasonable to expect that the person may use, consume, or be affected by the goods and that person suffers personal injury because of a breach of warranty

66
Q

Under traditional contract law can a contract be modified without consideration?

A

a contract cannot be modified unless the modification is supported by new consideration

67
Q

Under modern contract law can a contract be modified without consideration?

A

modification is permitted w/out consideration if:

  1. modification is due to circumstances that were unanticipated by the parties when the contract was made; and
  2. it is fair and equitable
68
Q

Under the UCC, can a contract be modified without consideration?

A

Yes - good faith promises of new and different terms by the parties to a sales contract are valid w/out consideration

69
Q

Can a written contract be modified orally?

A

Yes - however if the modification falls within the Statute of Frauds it must be written

70
Q

Under common law, if a contract expressly provides that it may be modified only by a writing, can parties still orally modify the contract?

A

Yes

71
Q

Under the UCC, if a contract expressly provides that it may be modified only by a writing, can parties still orally modify the contract?

A

No - however if this is between a merchant and a nonmerchant it requires a signature of the nonmerchant

72
Q

If the parties attempt to orally modify a contract that requires written modification (statute of frauds) - what result?

A

becomes a waiver - whenever the other party changed position in reliance on the oral modification

a party who makes a waiver affecting a not yet performed portion of the contract may retract the waiver if she notifies the other party that strict performance of the waived terms is required

Contracts (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions