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BUS 404 Final Exam/159 Q’s and A’s/100% Accurate
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BUS 404 Final Exam/159 Q’s and A’s/100% Accurate
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BUS 404 Final Exam/159 Q’s andA’s/100% Accurate
RECITALS/"UNDERSTANDING" - -brief summary about contract and what it's
intended to accomplish
-DEFINITIONS/DEFINED TERMS - -Terms referring to what each party is to
do, when they must do it, and related terms
-DETAILED DESCRIPTION OF THE DEAL - -Every contract is different, but will
contain terms referring to what each party is to do, when they must do it,
and related terms
-INDEMNIFICATION/INDEMNITY - -"A duty to reimburse for any loss, damage,
or liability incurred by the other party"
-NO WAIVER - -"Any failure of Seller to exercise its right or act w/ regard to
any breach of Buyer shall not constitute a waiver of Seller's rights under this
contract"
-INTEGRATION/FINAL AGREEMENT - -"This Contract constitutes the full and
final agreement of the Parties"
Intended to help avoid a party claiming there was some "side deal" which
was not contained w/in contract terms
-AMENDMENT - -"Any amendment to this Contract must be in writing and
signed by all Parties"
Intended to help avoid a party claiming there was a subsequent verbal/oral
change to the written contract
-WARRANTY and EXCLUSIONS - -Provision intended to state terms of
warranty (if any) as well as the exclusions. Pay careful attention to terms
such as "Seller has choice to repair or replace w/ a refurbished unit."
Typically excludes implied warranties or merchantability and fitness for a
particular purpose (UCC 2-314, 2-315, 2-316)
-LIMITATION OF LIABILITY - -"Seller's maximum liability, for any and all
claims or demands whatsoever, in contract, tort, or otherwise, shall not
exceed the sum paid by Buyer under this contract
-FORCE MAJEURE - -A provision that excuses performance due to causes
beyond the control of a party
,-GOVERNING LAW/VENUE - -A provision that states the applicable law as
well as location of courts for any legal dispute.
-UNIFORM COMMERCIAL CODE 2314 - -Unless excluded or modified (section
2316), a warranty that the goods shall be merchantable is implied in a
contract for their sale if the seller is a merchant w/ respect to goods of that
kind. Under this section the serving for value of food or drink to be consumed
either on the premises or elsewhere is a sale
-UNIFORM COMMERICAL CODE 2315 - -Where the seller at any time of
contracting has reason to know any particular purpose for which the goods
are required and that the buyer is relying on the seller's skills or judgment to
select or furnish suitable goods, there is unless excluded or modified under
the next section an implied warranty the goods shall be fit for such purpose
If you ask store to provide shoes for scaling Mount McKinley and they give
you a pair of normal walking shoes, they have now violated fitness for a
particular purpose
-How do sellers avoid implied warranties as required by 2316? - -- Write
disclaimer in ALL CAPS
- Expression like "as is," "with all faults"
-Indemnification - -When a party says whatever happens, however terrible it
be, you the indemnifying party will step up and pay any costs and not hold
me accountable
-Severability - -if courts says any term unenforceable because it violates
law or public policy then the whole contract doesn't get struck down
-Entire Agreement - -integration clause. No side deals, everything we've
agreed to is in this contract
-Four kinds of discharge - -- Performance by the parties
-Material breach by one or both parties
- Agreement of the parties
- Operation of law
-Condition - -an event whose happening or nonhappening affects a duty of
performance under a contract
-Difference between breach of a contractual promise and the failure of
nonhappening of a condition - -Breach of a contract subjects promisor to
liability. Happening or nonhappening of a condition prevents a party from
, acquiring a right or deprives him of a right but subjects neither party to an
liability
-Express condition - -A condition specifically and explicitly stated in a
contract and usually preceded by words such as conditioned on, if, provided
that, or when.
-Subjective satisfaction - -approval based upon a party's honestly held
opinion
-Objective satisfaction - -the promisor was actually satisfied w/ the
performance by the other party, but whether, as a reasonable person, he
ought to be satisfied
-Satisfaction of a Third Party - -a contract may condition the duty of one
contracting party to accept and pay for the performance of the other
contracting party upon the approval of a third party who is not a party to the
contract
-Implied-in-fact conditions - -are similar to express conditions in that they
must fully and literally occur and in that they are understood by the parties
to be part of the agreement.
If Edna contracts to paint Sy's house any color Sy desires, it's necessarily
implied in fact that Sy will inform Edna of the desired color before Edna
begins to paint. Notification of choice of color is implied-in-fact condition, an
operative event that must occur before Edna is subject to the duty of
painting the house
-Implied-in-law condition - -or a constructive condition, imposed by law to
accomplish a just and fair result
differs from an express condition and an implied-in-fact condition in two
ways:
- not contained in the language of the contract or necessarily inferred from
the contract and
- it need only be substantially performed
- Ex: Fernando contracts to sell certain tract of land to Marie for $18,000, but
contract is silent as to the time of delivery of the deed and payment of the
price. According to the law, contract implies payment and delivery of the
deed are not independent of each other. Courts will treat promises as
mutually dependent and therefore will hold that a delivery or tender of the
deed by Fernando to Marie is a condition to the duty of Marie to pay the
price. Conversely, payment or tender of $18,000 by Marie to Fernando is a
condition to the duty of Fernando to deliver the deed Marie.
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