Canons of Construction
'Cause I gotta have Faith
Gap Fillers
Warranties
Miscellaneous
100
Fact that I specifically listed one thing, means I might have intended to exclude others. And give the alternative canon that is based on like things.
What is expressio unius est exclusion alterius? And ejusdem generis?
100
Good faith standard during negotiation.
What is no duty of candor during negotiations.
100
List the UCC Gap Fillers
What is implied warranties of title and fitness, reasonable price, time of payment, time of delivery, and good faith and reasonableness for requirements / output contracts?
100
2-313 covers this.
What is express warranties.
100
Factors on Intent to be Bound
What are (these are factors _not_ elements): 1) Type of agreement 2) How detailed 3) Amount 4) Formal writing required 5) Formal writing contemplated in negotiations 6) Other factors (totality of the circumstances)
200
Contracts are construed against the drafter.
What is contra preferentum?
200
Duty of good faith during performance.
What is no opportunistic behavior during performance.
200
List the common law gap fillers.
What is sequence of performance, assignability, and good faith?
200
Four ways an express warranty can come into being.
1) Affirmations of fact 2) Promises 3) Descriptions 4) Samples or models
200
Factors in Determining Whether to Avoid a Disclaimer for Public Policy.
1) Scope and extent of the disclaimer 2) May not exculpate gross negligence, recklessness, or intentional misconduct. 3) Importance or necessity of the service to the public 4) Kinds of people who are likely to execute the disclaimer (specialized group vs all of public) 5) Degree service provider has control over the victim 6) Impact on price / availability of the service if the disclaimer is not permitted
300
Rule on specific versus general provisions.
What is specific provisions trump general provisions on the same subject?
300
Good faith duty when you are a fiduciary.
What is you must place yourself in the shoes of the other party.
300
What is assignability?
What is the ability to assign your benefit under the contract to a third party.
300
2-316 rules for merchantability
1) Merchantability automatically attaches whenever seller is a merchant for goods of that type 2) Disclaimer must be express and conspicuous and must mention "merchantability", "as-is", or "with all faults"
300
Rule of in pari delicto
When the parties are in equal guilt, the defendant's position is stronger.
400
No mere surplusage.
What is give effect to each provision - every word should be there for a reason.
400
What does Public Policy prohibit in employment:
1) Requiring employee to commit crime 2) Preventing compliance with a statutory duty 3) Dismissal of employee in violation of statute
400
When is a Letter of Intent binding?
When the parties intend to be bound. The fact that a formal agreement is contemplated will not defeat the contract (unless formal agreement is a condition precedent).
400
EXAM: Disclaimers of express warranties rules
1) You can't really disclaim an express warranty 2) But beware of parol warranties and the PER 3) If PER, then discuss fraud
400
Describe the "basis of the bargain" prevailing and minority views.
1) Majority: Requires _some_ inducement of buyer, and burden is on seller to prove no reliance. 2) Others require actual reliance. 3) Most accept any showing of awareness and assume reliance.
500
Do not adopt a meaning that would render a contract commercially unreasonable.
What is ut res magis valeat quam pereat?
500
Under what circumstances do employees tend to win an employment contract challenge?
1) Where dismissal aims at depriving employee of earned benefit 2) Sexual harassment or retaliation 3) Public policy issues 4) Employee gave additional consideration 5) Employee handbook can be a basis for an implied "for cause" term
500
When should you not imply terms?
1) Don't imply terms when the parties did not reach agreement. 2) Don't imply terms which would contradict the express terms.
500
Fitness for a particular purpose rules
1) Did you have a particular purpose? 2) Did you communicate that purpose? 3) Did the buyer rely on the seller's skill or judgment?
500
Explain avoidability rules.
The party who can avoid the contract can elect to continue the contract or opt out.
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