contracts II.doc - Contracts Is there a sale of goods What are the terms of the deal Was the deal breached If breached what remedy can I get Noscitur a

contracts II.doc - Contracts Is there a sale of goods What...

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Contracts Is there a sale of goods What are the terms of the deal Was the deal breached If breached, what remedy can I get Noscitur a sociis- court interpret in the context of the terms immediately preceding and following it Contra proferentem- If interpretation fails to resolve ambiguity, court should interpret ambigious term against the drafter Ejusdem generis- where a list of items follows or followed by a generic term, that w/o the list encompasses the listed item, unlisted items of the same genre are as if listed items Four Corners Jurisdiction (Mississippi) Judge looks to written agreement, plus any other documents incorporated therein by reference Restatement Jurisdiction Judge looks beyond written agreement to any other documents incorporated therein by reference, as well as other documents that appear to relate to agreement and evidence of circumstances surrounding K formation Threadgill v. Peabody Coal Co. Rule: Trade usage or custom will form a binding implied term if (1) should have been known (constructive knowledge) “sufficiently general so that the parties could be said to have contracted with reference to it” Or (2) subjectively known (actual knowledge), UNLESS Its unreasonable (violates public policy) Express terms (written or oral agreement) v. implied terms (trade usage/industry custom) Can not imply terms that violate public policy (negligence on part of P does matter) Express terms override implied terms, but if no express terms then implied terms will be applied II. Parol Evidence Rule Is this a service or good? Is agreement in writing? Is written agreement fully integrated? (full and final to everything) - cant introduce anything Evidence of integrated (MERGER CLAUSE) full and final agreement Is it partially integrated? (a final agreement to some of the terms btwn parties)
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-if not signed then hard to prove partially agreement - can present evidence but not contradictory evidence Did oral agreement come after writing? Can consider oral precedent if after Merger clause : the final document, supersedes all prior agreements, representations and understandings -presence of a merger clause then fully integrated, if fully integrated then court can’t look beyond written K to see what parties intended or what their obligations are Parol Evidence Rule- bars/blocks other sources of intention or obligation BUT NEED MERGER CLAUSE Where parties express agreement in writing with the intent that it be their full/final expression ( the writing is integrated) any other expressions - written or oral- made prior to the writing (even other agreements), and oral expressions made contemporaneously with the writing cannot be used to vary the terms of that writing R2d 213 -If final + fully integrated, bars consideration of expressions within writing entire scope -If final + partially integrated, bars consideration of expressions that contradict the writing (price, quantity) ***if K language goes outside the four corners then partially integrated Nelson v. Elway Rogers v. Jackson
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  • Fall '06
  • Daicoff
  • Contract Law, seller, Clicker question

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