K Interpretation - MBE

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K Interpretation - MBE
2012-06-04 22:15:22

K interpretation - MBE
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  1. What is the rule regarding objective meaning versus subjective meaning when there are ambiguous terms?
    objective meaning trumps subjective
  2. What are the 2 exceptions to the general rule that the objective meaning of an ambiguous term trumps a subjective meaning?
    • (1) where one party has reason to know of the other party's subjective notice, that first party is bound by that subjective understanding
    • (2) when at the time of K both parties have the same subjective understanding, that subjective understanding will control
  3. What is the Rule of Contra Proferentem?
    if an ambiguous term is included in the K, then in case of doubt it is construed against the drafter
  4. What types of K are subject to the rule of contra proferentem?
    all K drafted by one of the parties regardless of bargaining power
  5. What is the doctrine of reasonable expectations?
    even umabiguous terms may be interpreted against the drafting party if they conflict with the reasonable expectations of the other party
  6. What types of K are subject to the doctrine of reasonable expectations?
    usually insurance K but can also apply to any K of adhesion
  7. Can courts make a distinction b/t dickered and boilerplate terms under the doctrine of reasonable expectation?
  8. The doctrine of reasonable expectations only applie to defeat the enforceability of what?
    the boilerplate terms which are inconsistent with the reasonable expectations of the purchaser
  9. CoPCoDUoT are extrinsic evidence that can be used to do what?
    fill gaps and resolve ambiguities in K
  10. What is UoT?
    any practice or method of dealing having such regularity of observance in a place or trade as to justify an expectation that it will be observed with respect to the X in question
  11. What is CoD?
    pattern of conduct concerning previous X b/t the parties that is to be fairly regarded as establishing a common basis of understanding for interpreting their subsequent expressions and other conduct
  12. What is CoP?
    when a particular K invovles repeated occasions for performance by a party and the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it w/o objection
  13. What are the inadmissible uses for CoPCoDUoT?
    generally to contradict the express terms of the K
  14. What is CoP uniquely available to do?
    establish a waiver or modification of even the express terms of the K
  15. What is the hierarchy of CoPCoDUoT in the event of a conflict?
    CoP > CoD > UoT