K Gap Fillers - MBE

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Author:
stac8199
ID:
157281
Filename:
K Gap Fillers - MBE
Updated:
2012-06-04 22:03:56
Tags:
Gap Fillers
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Description:
MBE Gap Fillers in K
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  1. 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
  2. When do judges use default rules as gap fillers?
    judges use default rules when the K doesn't address the matter
  3. Are parties free to contract around the default rules?
    yes
  4. 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
  5. 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
  6. What does the warranty of merchantability promise?
    that the goods are fit for the ordinary purposes for which those goods would be used
  7. To whom does the warranty of merchantibility apply?
    merchants only
  8. 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
  9. 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
  10. 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
  11. 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
  12. 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
  13. Must the S use the words "warrant" or "guarantee" to create an EW?
    no
  14. Does puffing constitute an EW?
    no - a mere affirmation of the value of the goods doesn't create an EW
  15. What is the default rule for a missing price term?
    a reasonable price at the time established by the K for delivery
  16. What is the default rule for a missing time term?
    a reasonable time
  17. What is the default rule for a missing place of delivery term?
    the S place of business
  18. What is the default rule for a missing price term in a services or employment K?
    a reaosnable value for the services rendered
  19. 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
  20. 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?
    yes
  21. How does the restatement define good faith?
    honesty in fact
  22. 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
  23. Both the UCC and the restatement an obligation of good faith to what?
    the performance and enforcement of a K
  24. 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?
    yes
  25. 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
  26. 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
  27. The open quantity term arises in what 2 contexts?
    • (1) output K
    • (2) requirements K
  28. What is an output K?
    a K in which the B agrees to purchase all of hte S output for a particular good
  29. 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
  30. 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?
    yes
  31. 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

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