3) Course of performance between the parties (conduct on the same K)
4) Course of dealing between the parties (conduct on similar K's)
5) If Mistake or Ambiguous terms, or battle of the forms -- see above
Modification of the terms of a K
1) CL, new consideration required
2) UCC, no consideration needed as long as made in good faith
3) Modification may need to satisfy the SoF if the terms of new K fall w/in it
Parole Evidence Rule
1) Prior oral or written, or oral contemporaneous agreement
2) is inadmissible to vary, modify, or contradict
3) an integrated agreement intended as a complete and final expression of the parties.
parties have put their agreement in writing, which the court considers final
Complete Integration: written and final and complete
Partial Integration: written and final, but NOT complete
K provision states this is the complete and final agreement
Persuasive (relevant) but NOT conclusive
Parol Evidence definition?
stmt (oral or written) of one/both parties made BEFORE writing was signed (contemporaneous oral stmts too)
Parol Evidence Rule exceptions?
1) Post-contract statements and writings: PER does not apply
2) Mistake in integration (e.g., a typo): A court may consider parol evidence of such terms for the limited purpose of determining whether there was a mistake in putting the agreement in writing (not for purposes of contradicting the written deal)
3) Establish a defense to enforcement of the deal: PER doesn't apply (misrepresentation, fraud, duress); e.g., Parol evidence may be used to show that K is unenforceable due to an unsatisfied condition precedent to the existence of a contract.
------If the purpose of parol evidence is to get OUT of a K, then PE is okay
4) Explain the terms of the writing (resolve ambiguities): PE can be used; e.g., resolve ambiguity of the definition of chicken in the K
5) PE can add terms: ONLY if written agreement was only partial integration
1) No place of delivery agreed upon: sellers place of business, or place where goods are
Shipment Contract: how does seller complete obligations?
seller completes its delivery obligation when it . . .
1) gets the goods to common carrier,
2) makes reasonable arrangements for delivery,
3) notifies buyer
note: seller completes its delivery obligations BEFORE delivery is completed
Destination Contract: how does seller complete obligations?
seller doesnt complete obligation until goods arrive at dest.