What are Express Terms?
Terms of the contract that state or make explicit one party's promise to another.
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.
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.
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.
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.
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.
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.
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.
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:
- Subdivision approval
- Provisions of adequate water
What are 3 clauses that would allow you to manage your liability?
- Limitation of Liability Clause
- Exemption Clause
- Liquidated Damages Clause
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.
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
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.
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
What is a Shrink-Wrap Agreement?
An agreement whose terms are enclosed with a product such as prepackaged software.
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.
What is a Browse-Wrap Agreement?