K Gap Fillers - MBE
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What are the 2 main problems in which gap fillers are used?
(1) gaps in the agreement leaving certain issues unaddressed
(2) ambiguities in the agreement concerning issues the parties tried to address
When do judges use default rules as gap fillers?
judges use default rules when the K doesn't address the matter
Are parties free to contract around the default rules?
In the sale of all goods the implied warranty of title promises what 3 things?
(1) good title to the goods
(2) rightful transfer of the goods
(3) no liens are attached to those goods
How can the warranty of title be excluded or modified?
(1) specific language
(2) circumstances which give the B reason to know that the S doesn't claim unencumbered title
What does the warranty of merchantability promise?
that the goods are fit for the ordinary purposes for which those goods would be used
To whom does the warranty of merchantibility apply?
What will displace the warranty of the merchantability?
(1) specific mention of the word merchantability which is conspicuous if in writing
(2) any other language or circumstances that would reasonably be understood by the B to exclude that warranty
What does the warranty for a particular purpose promise?
that the goods being sold are fit for the particular purpose for which the B intends to use them
What are the elements for applicability of the warranty for a particular purpose?
(1) S has good reason to know the particular purpose for which the goods are required
(2) S knows the B is relying on the S skill or judgment to select or furnish reasonable goods
(3) the B does so rely
How can the warranty for a particular purpose be disclaimed?
(1) if in writing it must be clear and conspicous
(2) goods had patent defects that were easily detectable
In what 3 ways do express warranties by the S that the goods will conform to some standard thereby becoming a basis of the bargain?
(1) affirmation of fact or promise
(2) description of the goods
(3) sample or model
Must the S use the words "warrant" or "guarantee" to create an EW?
Does puffing constitute an EW?
no - a mere affirmation of the value of the goods doesn't create an EW
What is the default rule for a missing price term?
a reasonable price at the time established by the K for delivery
What is the default rule for a missing time term?
a reasonable time
What is the default rule for a missing place of delivery term?
the S place of business
What is the default rule for a missing price term in a services or employment K?
a reaosnable value for the services rendered
What is the default rule for a missing duration term in an employment K?
the employment at will rule meaning that the ER can fire and the EE can quit at any time for any reason
In a majority of jurisdictions will an oral or written assurance of job security made to an individual EE suffice to take the K out of the default employment at will rule?
How does the restatement define good faith?
honesty in fact
In the case of a merchant, what does good faith mean?
honesty in fact and the observance of reasonably commercial standards of fair dealing in the trade
Both the UCC and the restatement an obligation of good faith to what?
the performance and enforcement of a K
Does the obligation of good faith apply to the situation where the terms of the K leave a critical term open to the determination of one party?
If a K leaves the price to be fixed by one of the parties, then the party must what?
fix the price in good faith
If a K contains a satisfaction or similar term then the determination as to whether a party's performance obligation is complete must be exercised how?
in good faith
The open quantity term arises in what 2 contexts?
(1) output K
(2) requirements K
What is an output K?
a K in which the B agrees to purchase all of hte S output for a particular good
What is a requirements K?
K in which the S agrees to supply the B with all of the B requirements for a particular good
Does good faith apply to the party entitled to determine the particular quantity of goods to be sold under either a requirements or output K?
In addition to the GF requirement, the UCC prohibits any unreasonably disproportionate demand or tender in a requirements or output K if there is either what?
(1) a stated estimate
(2) a past course of dealing
K Gap Fillers - MBE
MBE Gap Fillers in K