Terms of K Flashcards
background to PER
Parties memorialize their agreement in a writing with the intent that the writing reflects their final agreement. (aka integration)
anything BEFORE memorializing, written or oral -OR- any oral expression DURING memorializing
are both INADMISSIBLE to change the writing
list (2)
is the writing an integration
- was writing intended as final expression of the agreement?
- was the writing intended to be a complete or partial reflection of their agreement?
if the writing is complete, what does this mean for the writing?
writing cannot be contradicted nor supplemented with additional terms
if the writing is partial, what does this mean for the writing?
cannot be contradicted
can be supplemented with consistent additional terms
The UCC assumes about writings?
assumes that all writings are partial integrations
what is a merger clause
a clause in a written K which says that K is the complete and final agreement btwn the parties
modern trend of considering the effect of a merger clause
merger clause considered only one factor in determining integration (if writing is the final reflection of the agreement of the parties)
What does PER do
keeps out extrinsic evidence of prior or contemporaneous agreements - oral or written- but only if the evidence is used to vary, contradict, or add to a final, later writing…aka bringing evidence to contradict the formation of the writing
list (7)
when can extrinsic evidence be used
- validity issues
- collateral doctrine/naturally omitted terms doctrine
- interpretation
- show true consideration
- reformation
- subsequent modifications
- add’l terms under UCC 2
PER
when can extrinsic evidence be used for validity issues
(Theory)
to attack the agreement’s validity
iow - party acknowledges that the writing accurately reflects the agreement btwn the parties BUT asserts that the agreement never came into being because of
- formation defects
- a condition needed to occur before K came into effect that didn’t
list (2)
When can extrinsic evidence be used for validity issues
(two reasons)
- formation defects - ie fraud, duress, mistake, illegality, misrepresentation etc
- condition required for effect - party offers extrinsic evidence of an oral agreement that K would not become effective until a certain condition occurred
collateral terms doctrine
extrinsic evidence permitted for collateral terms that are related to subject matter of writing but not part of the primary purpose
***less often applied because too conclusory thus, inflexible***
naturally omitted terms doctrine
terms that would have naturally been omitted from the written agreement are admissible extrinsic evidence
list (2)
under the “naturally omitted terms doctrine” what terms are considered omitted
- term that does not conflict with writing
- terms that concerns a subject that parties wouldn’t expect to include in the writing
list (2)
parol evidence/extrinsic evidence permitted for interpretation when
- uncertainty/ambiguity in the written agreement’s terms or
- dispute as to meaning of terms
parol evidence to show true consideration allowed when?
extrinsic evidence allowed to show that true consideration was paid
parol evidence to show reformation allowed when?
party alleges facts that show the writing should be reformed (i.e. mistake)
parol evidence for subsequent modifications
evidence of SUBSEQUENT modifications to writing allowed…so parties can show that they altered the writing after it’s making
remember PER prohibits writings before writing is made but not after!!
parol evidence for additional terms under UCC 2
party cannot contradict a writing but can add additional consistent terms or supplement/explain terms using exstrinsic evidence
UNLESS
- merger clause
- ct rules that writing was intended as complete
