Goal: How to Challenge/Defend a K
In K’s 2… NEVER talk about SOF!!!
Essay
You want to explain everything that applies even a little bit
Then dismiss those that don’t apply
Then discuss why you are left w/ the answer
Always start with the question: What is the predominant purpose of the K
UCC Art 2 – Governs sales transaction dealing with Goods
Consider perfect tender rule
Most likely not promises and conditions
Predominate purpose test
Unlike the common law, which governs service Ks – e.g. binding books or installing pipes, UCC Art 2 governs sales transactions for “goods” (defined as movable, tangible “things” at the time of contracting (K)).
Moreover, Printing Center of TX teaches us that in “hybrid transactions, the question becomes whether the dominant factor or essence of the transaction is the sale of materials or services”- i.e., what is the main purpose for the parties’ K: Goods or Services?
Common Law
More then likely be promises and conditions
Unlike the Article 2 which governs the sales transactions of goods (i.e. movable tangible “things”)– CL governs service K’s (i.e. Hired to BUILD the crib, install pipes, or bind books)
When I doubt apply the predominant purpose test or hybrid transaction test where the question becomes whether the dominant factor or essence of the transaction is the sale of materials or services”- i.e., what is the main purpose for the parties’ K: Goods or Services?
I Parol Evidence Rule
A) See Handout
B) Definition
1) Operates to keep prior agreements that have not been reduced to writing out of the K that the parties have already put into writing
2) A binding integrated agreement discharges prior agreements if:
(i) The other agreements are inconsistent (Cannot add in something to contradict)
(ii) The agreements are within the scope (If within the scope then would have included them in the contract)
3) Substantive Rule – Agreements that are made prior to or contemporaneous (existing at the same time) to the parties reaching a final agreement are ineffective (unenforceable) once the parties have reached a final subsequent agreement
4) Evidentiary Rule – Agreements that are made prior to or contemporaneous (existing at the same time) to the parties reaching a final agreement are inadmissible once the parties have reached a final subsequent agreement
C) The purpose of the rule
1) People were able to make many promises w/o performing – Thus in order for our society to progress there became a need for people to have to perform their promises
2) Keeps a liar from enforcing a lie
3) It honors a written K
(i) If the parties have taken the time and trouble to reduce their agreement to writing, it has taken much time and money and we should not be wasting this
(ii) Our law presumes signed and written K’s have integrated ALL matters that have been discussed and the parties feel are important therefore the law will not allow in evidence to the contrary
D) Trigger words are things like:
1) Discussed
2) Negotiated
3) Talked about
4) Agreed orally
5) Agreed outside the terms of the K
6) “I specifically recall telling Brent that it would blah blah blah….”
(i) Obviously it is not in the K so it must be PER
7) In an essay if it says things like – “according to the specification of the K” – but yet the essay doesn’t even talk about any specification – Then they must be PER
E) Hypo: Jane Bean and Hiram Walkup agreed that Jane would build a dock for Hiram on a lake near Big Rock Candy Mountain. They entered into a formal written K utilizing a construction K form form supplied by Ja
extrinsic evidence and MAY NOT be supplemented by consistent additional term
4) Partially Integrated
(i) If the writing is final BUT is NOT the complete written expression of the parties then you have a partial integration – Consequence – You MAY NOT contradict the writing but you MAY supplement the writing with extrinsic evidence (oral or written) as long as they are consistent terms
(ii) A document that is intended to be final but is not intended to include all details of the parties agreement
5) A term is contradictory when:
(i) It negates a term
(ii) “Absence of harmony in terms of language & respective obligations”
6) Tests to Determine then Extent of Integration
(i) 4 corners test
(a) A judge looks within the “4 corners of a document” and determines that the writing on its face is complete, the writing will be found to be totally integrated
(ii) Williston’s view
(a) Reasonable person approach
(b) Would a reasonable person looking at the document w/ knowledge of the surrounding circumstances conclude that everything that is necessary to have a totally integrated K is here
(c) Not looking for actual intent – It is presumed by the reasonable person
(d) If a merger clause exists:
1. 1) This clause states that this written K is the only agreement and nothing outside of it will be taken as part of the K – If this exists it is conclusive proof of total integration
2. 2) ask the question, “Would it have been “natural” for the parties to have included the term in the writing”
a. If yes = total integration
b. If no = partial integration
