Evaluating Exam Problem
1. Interpretation
a. PER
b. NOM
c. TOOLS
d. MISUNDERSTANDING
2. Express Conditions
3. Performance
a. Common Law
i. CC of exchange
1. Order
2. Substantial performance
ii. First breacher
iii. First material breacher
1. Can suspend
2. With repudiation, can sue for total breach
3. If anticipatory repudiation, wait or remedies
iv. Excuses (divisibility, prevention, waiver, election)( no common law duty to allow cure as opposed to UCC)
b. Sales
i. Constructive Conditions (507-511)
ii. Right to reject 601,612
iii. Acceptance or rejection; 606, 602, 607
iv. If Acceptance, revoke; 608
v. If rej or revoke, cure; 508
vi. Duties upon rejection, revocation; 603-605
vii. Anticipatory Repudiation, insecurity; 609-611
viii. Excuses
4. Damages (CL)
a. Formula: LV + OL- CA +GP
i. For S, LV is K price; GP retained
ii. For B, LV is Mkt value of replacement
b. Reliance or restitution
c. Limits foreseeability, avoisdabilty, certaintiy
d. Damages substantial performce
e. Liquidated damages ot modification of remedy
5. Damages (UCC)
a. S: 709;706;708; 710
b. B: 716; 712; 713; 714; 715
6. Policing Contracts
7. Third party beneficiary
Parol Evidence Common Law
· If partially integrated(at least one term agreed), evidence of prior agreement to those terms are not admissible. However, evidence of an additional term is may supplement.
· If a writing is a complete integration, then additional evidence of contemporaneous terms may not be admitted.
Common Law questions to ask:
· 1. Is the term prior (written or oral) or contemporaneous (oral); if so potential Parol problem. ( potential inadmissible per Res. 213)
o If term was before agreement; potential paro
a contract (Hicks v. Bush)
o Collateral- an agreement that is off to the side and is unrelated to the other agreement
Parol evidence UCC
UCC questions to ask
· 1. Do terms agree or otherwise final- for a contract must agree on at least one term
· 2. Terms prior or contemporaneous oral
· 3. Does it contradict
o Does it totally negate a term of the writing; X – not X
· 4. Is an agreement complete
o Merger clause almost creates an irrebuttal presumption that it is complete
o Adopts modern rule
o If no: is additional term consistent? (If yes, in; if no; out)
§ Consistant = not contradictory (Majority rule)
o If yes: is it course of dealing, course of performance, usage of trade
§ If no, it is out; if yes, continue
o Is term carefully negated?
§ (if no, the term is in; if yes, then term out).
§ Ex. Parties explicitly agree that former practice of blah-blah is out. Boilerplate language is not enough. (ex. Catch all will not work)
