Please enable JavaScript.
Coggle requires JavaScript to display documents.
BARBRI - Contract Enforcement - Coggle Diagram
BARBRI - Contract Enforcement
Determining Terms of Contract
Parol Evidence Rule
Definition
Integration
Written agreement w/ intent to be final
Any agreement prior is inadmissable to vary terms
General Rules
a. K construed as whole
General intent > specific clause
b. Words have ordinary meaning
Unless proof of technical meaning
c. written/typed > printed provisions
d. Courts want to enforce/validate K
e. Ambiguity interpreted against preparing party
If you write it, ambiguity works against you
f. Course of Dealing
Previous transactions for interpretation
g. Usage of trade
practice/method of dealing for interpretation
h. course of performance
repeated performance w/o objection
When rules conflict:
Express terms > (f)(g)(h)
(h) > (f) > (g)
UCC: Interpretation
Gap Filler Terms
Price
IF
No Price written
Price TBD
Reasonable price @ delivery
Price set by 3rd party
Place of Delivery
If blank, then
Seller's business (or home)
Time for Shipment/Delivery
If blank, then
Reasonable time
Time for payment
If blank, then
TIme & place of buyer's receipt
Assortment
Buyer responsible for choosing
Warranties
Express
Promise made as basis for bargain
COULD have been relied upon
Not statement of value or opinion
Implied War'ty of Merchantability
If Merchant
Fit for ordinary purpose of use
Absolute liability
Implied War'ty of Fitness for Particular Purpose
Seller should know that buyer is relying on statement AND
Buyer relies on that judgment
War'ty of Title / Against Infringement
Buyer assumes no liens, legal issues, etc
Disclaimer of Warranties
W'ty of Title
Only by specific language
Implied W'ty
Specific or general disclaimer
Specific Disclaimers:
W'ty of Merchant
Only by mentioning Merchantability
W'ty of Fit. Purpose
Only by conspicuous writing
"As Is"
Can't be hidden/fine print
By Course of Dealing
Express Warranties
UCC: Difficult to disclaim
Limitation on damages
Probably Unconscionable
Timing
If disclaimer is inside of packaging, then not effective against buyer
Compare / "Clickwrap?
Installation disclaimers OK
Unconscionability
Test within standards
Delivery / Risk of Loss
Effect of Breach
Risk shifts when defects are cured OR buyer accepts
Revocation of Accept
If nonconforming, Risk stays w/ seller
Noncarrier Case
If Merchant
Risk shifts when physical possession
Not Merchant
Risk shifts when delivered
Carrier Case
Shipment K
Risk shifts when delivered to carrier
This is default
Destination K
RIsk shifts when @ destination
Insurable Interest
Buyer bears risk before receiving goods purchased
Special property interest is insurable
Performance
What is Performance?
CL
Substantial performance is OK
UCC
Perfect Tender
Obligation of...
Good Faith
Obligation of tender / deliver
B's Ob'n to pay
B's right to inspect
Conditions
Express Conditions
Reasonable person standard
If Personal taste / judgment
Personally satisfied
Promise
Unconditional
Commitment to do / not do
EITHER
Event/occurance
before
duty to perform
Event/Occurance
releases
duty
Promise / Cond. = determined by intent
Classification
C'n Precedent
Occurs before duty assigned
C'n Concurrent
Simultaneous
C'n Subsequent
Cuts off duty after event
Constructive (Implied)
C'n of Performance
Implied that other party with perform
C'n of Cooperation
Obligated to perform based on other party's performance
C'n of Notice
Give notice when performance due
Order of Performance
If concurrent, then duty to perform immediately upon other
Longer project is condition precedent
Excuse of Conditions
By Hindrance/Failure to cooperate
If wrongfully prevented from performance, then excused
By Waiver/estoppel
Estoppel Waiver
Detrimental reliance
Can be revoked anytime before detriment
Election Waiver
When c'n doesn't occur, they may
terminate liability OR
Continue under contract (Waived Condition)
Waivable Conditions
If no consideration
Installment K's
C'n Bnf'ry can insist on condition compliance before future installments
By Actual Breach
Breach excused (CL IFF Material)
Discharge of Duty to Perform
Breach
Material or Minor?
CL
Material Factors
Amount of benefit received
Adequacy of comp'n
Extent of part performance
Hardship
Negligent/willful
Likelihood or performance
UCC(?)
Minor Breach
Ob'ee receives substantial benefit despite Ob'or defective performance
Material Breach
No substantial benefit of bargain
Can end K or can sue for remedies
Timliness
Late OK if reasonable time unless essential
Consider all circumstances
What is a breach?
Absoute duty to perform NS
Absolute duty to perform not discharged
nonbreacher must be willing and able
Perfect Tender Rule
If goods/delivery fail, then buyer can
Reject all
Right to reject ends w/ acceptance
Reasonable time to inspect
Fail to reject w/in reasonable Time
Any act inconsistent w/ seller's ownership
Buyer responsible for
Ship back, store, or resell on seller's behalf
Accept All
Can be revoked IFF
Defect substantially impairs value AND
Accepted w/ expectation for cute OR
Difficulty discovering defects OR
Seller assured of good conformation
Accept & Reject
Exceptions
Seller's Right to Cure
Single delivery K
Reasonable notice + tender goods w/in time
Beyond K time if
Trade practice made goods seem acceptable OR
Seller could not have known of defect
3rd Parties
Remedies
Statute of Limitations
Begins when breach occurs
Warranty
Express: When should have discovered
Reformation
Available When
Mistake
Agreement AND
Agree to writing AND
Variance b/w OG & K
Misrepresentation
"on the record"
Rescission
Defenses
All equitable defenses expt P's negligence
Available When
Mutual Mistake
Unilateral Mistake
Unilateral Mistake + hardship
Misrep of fact / law
Other (Duress, illegality, etc)
Restitution
Preventing unjust enrichment
Value of Benefit conferred
Applied When
K breached
K Unenforceable (Quasi K)
No K
Monetary / Damages
Compensatory Damages
Standard Measure
"benefit of the bargain"
Reliance Damage
As if K never was formed!
Consequential
Foreseeable / reason to know
Certainty rule
Not speculative
Punitive
not OK
Nominal
Symoblic $1
Liquidated Damages
Enforced IF
Difficult to estimate AND
Reasonable forecast of compensatory damages
Recoverable even if no actual damages
Under UCC
Buyer's Damages
Seller no deliver or Buyer rejects
Market price OR
Cost of replacement (cover)
Good faith AND
No reasonable delay
Seller no conform but Buyer accepts
Warranty Damages
Value of delivered goods minus good good
Must have notice
Seller anticipatorily breaches
Market price @ breach time minus contract price
Consequential damages
Reason to know AND
Subsequent loss could not be prevented by cover
Resale
Manufacturing
Seller's Damages
If Rejected / Repudiated
Resell and recover difference K/resale price
Difference b/w market & K price
Lost profits
Land
K price & FMV
Construction K
Owner breach
Entitled profits + Costs expended
Builder breach
Cost of completion + reasonable comp for delay
Employment
ER breaches
Full K price
EE Breaches
Cost of replacement OR
Offset money owed for work done
At Will
no breach
Mitigation
Employment
Comparable job
Manufacturing
Not continuing work
Construction
Not continuing work
Sale of Goods
Full K price
Nonmonetary Remedies
Specific Performance
Available for land / rare / unique goods
Cannot use for services
Noncompete
Only When
Covenant is reasonable AND
Consider
Doesn't harm public
Geographic scope/duration
Legitimate interest
Service is unique
Defenses
Laches
Unlcean hands
Sale to bonda fide purchase
Under UCC
Buyer
Cancellation
Right to Replevy Identified Goods
If Prepayment, no delivery, then replevy IFF
Insolvent w/in 10 days OR
Household purchases
Specific Performance
Seller
Withhold Goods
Recover Goods if insolvent
10 day limit doesn't apply if fraud w/in 3 mo
Demand Assurances
If reasonable grounds for insecurity
Demand in writing the assurances re: performance