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What are Express Terms?
Terms of the contract that state or make explicit one party's promise to another.
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What are Implied Terms?
Terms that are not expressly included in a contract but that are necessary to give effect to the parties intention. A judge may imply terms in a contract to make the contract workable.
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How do courts deal with Vague or Ambiguous Language?
- Courts are required to enforce the contract as it is written.
- Courts assign as reasonable a meaning as possible to vague or ambiguous terms.
- If the contract has been drafted by one of the parties, any ambiguity in language will be constructed against that party in favour of the other.
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What is the Parole Evidence Rule?
- A rule that limits the outside evidence a party can introduce concerning the contents of a contract that has been put in writing.
- The rule forbids outside evidence as to the terms of a contract when the language of the written contract is clear and the document is intended to be the sole source of contractual content.
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What is Contractual Quantum Meruit?
- Awarding one party a reasonable sum for the goods and services provided
- Under a contract where the contract was not completed
- or where a price was not agreed upon but there was an implied promise to pay.
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What is the Entire Contract Clause?
- Term in the contract in which the parties agree that their contract is complete as written.
- Are used to ensure application of the parole evidence rule.
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What is the Changed Circumstances Rule?
- Circumstances may arise that prevent a party from performing its contractual obligations.
- Law permits the use of contractual terms as a buffer against future, uncertain events to limit liability.
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What is Conditional Subsequent and Conditional Precedent?
- Conditional Subsequent - A condition that, when it occurs, brings an existing contract to an end.
- Conditional Precedent - A condition that, until it occurs, suspends the parties' contractual obligations to perform their contractual obligations.
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Name some examples of when you would use a Conditional Agreement?
- Purchasers of real estate may rely on conditional agreements by making the contractual obligation to buy and sell subject to:
- Financing
- Rezoning
- Subdivision approval
- Provisions of adequate water
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What are 3 clauses that would allow you to manage your liability?
- Limitation of Liability Clause
- Exemption Clause
- Liquidated Damages Clause
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What is the Limitation of Liability Clause?
Term of a contract that limits liability for breach to something less than what would otherwise be recoverable.
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What is the Exemption Clause?
- Term of a contract that identifies events causing loss for which there is no liability.
- EX: Cell phone - lose it, still have to pay
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What is the Liquidated Damages Clause?
Term of a contract that specifies how much one party must pay the other in the event of a breach.
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What is a Standard Form Contract?
- A contract in which the main terms cannot be changes throughout negotiations.
- Common for obtaining a credit card, renting a car, buying insurance
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What is a Shrink-Wrap Agreement?
An agreement whose terms are enclosed with a product such as prepackaged software.
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What is a Click-Wrap Agreement?
- An agreement that appears on a users computer screen when a user attempts to download software or purchase goods or services online.
- The user is instructed to review the terms prior to assenting by clicking an "I Accept" button.
- Usually the user cannot proceed any further without agreeing to the terms.
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What is a Browse-Wrap Agreement?
Are formed by the user agreeing that, by simply using the website, he or she is bound to the terms of use associated with the website.
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