PER and Warranties
Under the Parol Evidence Rule...
It applies when...
1. evidence that is extrinsic to a written K is inadmissible to supplement or contradict the written K
2. the writing is a complete integration (parties expressed writing as their final agreement)
Can a merchant disclaim the implied warranty of merchantability?
Yes, IF there is CONSPICUOUS language and the term "merchantability"
Common law- the doctrine of substantial performance states that a party will satisfy the constructive condition of exchange if there is NOT a ...but the failure may not be ... in order to satisfy the substantial performance doctrine.
1. Material breach
2. Willful
For the excuses of impossibility and impracticability, an unforeseen event, which neither party assumed would occur must make performance either
1. Impossible....
2. Impractictable...
Impossible- performance is objectively impossible
Impracticable- performance is only possible with extreme and unreasonable difficulty or expense Note: something that makes performance more expensive than expected not enough
What happens if the Accord is NOT performed?
the other side can sue on either the original obligation or the new promise
PER bars evidence of...
Exceptions include...
1. Negotiations and agreements BEFORE K becomes integrated
2. Extrinsic evidence may be allowed IF either:
- agreement was only PARTIALLY integrated, or
- additional terms would ordinarily be in a separate agreement
Triggered when a buyer relied on a seller's expertise to select a special type of good that will be used for a special purpose
Implied Warranty of Fitness for a Particular Purpose
The UCC requires ...for performance. There must be
1. Perfect ...
2. Perfect ...
Perfect Tender
1. Perfect goods
2. Perfect delivery
The three common scenarios for impossibility or impracticability are
1. Performance becomes illegal
2. Subject matter of the K is destroyed
3. In a service K, the performing party dies or is incapacitated
A...arises when BOTH parties agree that a substitute person will take over the contractual obligations.
Novation
PER does NOT apply to...
1. Agreements (oral or written) made after the writing
2. Evidence necessary to determine if there was a mistake in the process of reducing an agreement to writing
3. Evidence concerning a party's defense based on misrepresentation, fraud, or duress
4. Evidence used to resolve ambiguities about the meaning parties intended to give particular terms in the writing
Can a nonmerchant extend the implied warranty of fitness for a particular purpose?
Can this warranty be disclaimed? If so, how?
1. Yes, as long as buyer relies on sellers expertise
2. Yes, if CONSPICUOUS language such as "as is" and must be in writing
If the seller fails to tender perfect goods and TIME is left on the contract OR the seller had reasonable grounds to believe that the buyer would accept a replacement, THEN the buyer MUST give the seller a chance to
CURE
A K may be discharged under Frustration of Purpose if 3 elements are met:
1. An unexpected event destroys one or both party's purpose for entering into the K, whether it is still possible is irrelevent
2. The unforeseen event is NOT the fault of the frustrated party; and
3. The non-occurrence of the event was a basic assumption of hte K
If there is a valid novation, then the ... will be ... from performance.
1. original promisor
2. Excused
A promise that affirms or describes the goods and is part of the basis of the bargain, unless its the sellers opinion
Express Warranty
Express conditions must be .... unless the condition is excused. Examples of language that create express conditions are...
1. Strictly satisfied
2. "only if", "provided that", "on the condition that", "only in the event that"
If the K is a ...K, then the SELLER must take 3 actions to satisfy perfect delivery.
Shipment K
1. Get the goods to a common carrier
2. Make arrangement for delivery; and
3. Notify the buyer
What is one limit that prevents both parties from rescinding a K, even if they both agree and meet the SOF or UCC requirements?
Parties can NOT rescind a K if the rights of a third-party beneficiary have vested
....does not normally excuse liability on a K that has been formed. The estate will normally be on the hook for any contractual obligations
Dying
Implied Warranty of Merchantability is triggered only when...
and it warrants that the goods are...
1. the seller is a merchant dealing in the goods at issue
2. fit for ordinary commercial use
The party receiving the protection of the condition may waive the condition by...
It can also be waived if the OTHER PARTY...
A ....standard is used.
1. words or conduct
2. wrongfully interferes
3. Good faith
2. BUYERS
What is Accord and Satisfaction?
Accord and satisfaction occur when both parties to an existing K agree to accept different performance in satisfaction of the original existing obligation.
Accord- agreement to accept alternative performance in satisfaction of the existing obligation
Satisfaction- completion of the alternate performance
Both parties can agree to walk away from a K but ONLY IF ...
there is some performance remaining from each side, otherwise, there is no consideration for this modification.
This is called a rescission by mutual agreement.