1L Substantive Law Questions (c/o 2017) Forum

[cannibal ox]

Shout out to Br3v for making last year's topic.

2Ls / 3Ls / graduates are encouraged to contribute to this thread.

Outlining season is upon us. Exams are within sight.

How does 2-207 work? What's the Erie Doctrine? Don't understand a concept? Ask it here.

[Attax]

Thanks for the thread!

[Fiero85]

Tagged

[Manteca]

Checking in.

[sesto elemento]

In for the BLL

[SemiReverseSplinter]

Parol Evidence Rule... There are apparently two primary rules, along with California's odd departure from the normal rules. Anyone have a short and simple summary of the rules? Also what's the significant difference between the Restatement's treatment and the UCC? Correct me if you think there are more than two primary rules.

The relevant rules (I think) are from UCC 2-202 and Rest 201-217.

[cannibal ox]

Hopefully someone else can help add to this, but I'll add what I know.

It depends on if you're trying to add a term or if you're trying to interpret a term.

Under the UCC if you're trying to add a term, the writing can't be intended to be final and exclusive (parol evidence won't get in). If not, or you're unsure then the term almost certainly would have been added (but it wasn't), it doesn't get in. If the term contradicts a term that is already in the writing, it won't get in.

Under the 2nd Restatement if you're trying to add a term, if the writing is completely integrated, parol evidence won't get in. If there isn't a chance that the term could have been naturally omitted, it won't get in. If the term contradicts a term that is already in the writing, it won't get in. The exceptions are things like showing fraud, mistakes, duress, illegality, no consideration.

Under the common law, in the traditional approach (we learned it as the Gianni case), parol evidence won't get in if the writing looks final, or if the term was in the contract but a certain condition regarding that term was not (in the case the contract mentioned soda, but not that the seller was the exclusive seller of soda)

Under the common law, in the modern approach (we learned it as the Masterson case), parol evidence is more likely to get in. You can basically look everywhere to try and find reasons why the term might have been left out. It focuses on intent, and sends most parol evidence onto the jury to determine as a matter of fact.


If you're trying to interpret a term, the 2nd Restatement will always let you get in evidence to do so.

The UCC always lets terms be interpreted, even in a completely integrated writing. You can use course of performance, course of dealing, and usage of trade to interpret a term. If you're using usage of trade, you have to show the other party was a member of that trade or they should have been aware that another interpretation existed.


Keep an eye out for specific merger clauses, which will bar evidence from being admissible even in situations where it otherwise would get in.

[pancakes3]

Tag.

[SemiReverseSplinter]

Hopefully someone else can help add to this, but I'll add what I know.

It depends on if you're trying to add a term or if you're trying to interpret a term.

Under the UCC if you're trying to add a term, the writing can't be intended to be final and exclusive (parol evidence won't get in). If not, or you're unsure then the term almost certainly would have been added (but it wasn't), it doesn't get in. If the term contradicts a term that is already in the writing, it won't get in.

Under the 2nd Restatement if you're trying to add a term, if the writing is completely integrated, parol evidence won't get in. If there isn't a chance that the term could have been naturally omitted, it won't get in. If the term contradicts a term that is already in the writing, it won't get in. The exceptions are things like showing fraud, mistakes, duress, illegality, no consideration.

Under the common law, in the traditional approach (we learned it as the Gianni case), parol evidence won't get in if the writing looks final, or if the term was in the contract but a certain condition regarding that term was not (in the case the contract mentioned soda, but not that the seller was the exclusive seller of soda)

Under the common law, in the modern approach (we learned it as the Masterson case), parol evidence is more likely to get in. You can basically look everywhere to try and find reasons why the term might have been left out. It focuses on intent, and sends most parol evidence onto the jury to determine as a matter of fact.


If you're trying to interpret a term, the 2nd Restatement will always let you get in evidence to do so.

The UCC always lets terms be interpreted, even in a completely integrated writing. You can use course of performance, course of dealing, and usage of trade to interpret a term. If you're using usage of trade, you have to show the other party was a member of that trade or they should have been aware that another interpretation existed.


Keep an eye out for specific merger clauses, which will bar evidence from being admissible even in situations where it otherwise would get in.

Very helpful, thank you.

[BentleyLittle]

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[ManoftheHour]

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[CardozoLaw09]

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[drumstickies]

nice, interested in seeing what pops up

[BankruptMe]

in for dat dere knowledge

[checkers]

Oh god it's November already.

[JG7773]

Hopefully someone else can help add to this, but I'll add what I know.

It depends on if you're trying to add a term or if you're trying to interpret a term.

Under the UCC if you're trying to add a term, the writing can't be intended to be final and exclusive (parol evidence won't get in). If not, or you're unsure then the term almost certainly would have been added (but it wasn't), it doesn't get in. If the term contradicts a term that is already in the writing, it won't get in.

Under the 2nd Restatement if you're trying to add a term, if the writing is completely integrated, parol evidence won't get in. If there isn't a chance that the term could have been naturally omitted, it won't get in. If the term contradicts a term that is already in the writing, it won't get in. The exceptions are things like showing fraud, mistakes, duress, illegality, no consideration.

Under the common law, in the traditional approach (we learned it as the Gianni case), parol evidence won't get in if the writing looks final, or if the term was in the contract but a certain condition regarding that term was not (in the case the contract mentioned soda, but not that the seller was the exclusive seller of soda)

Under the common law, in the modern approach (we learned it as the Masterson case), parol evidence is more likely to get in. You can basically look everywhere to try and find reasons why the term might have been left out. It focuses on intent, and sends most parol evidence onto the jury to determine as a matter of fact.


If you're trying to interpret a term, the 2nd Restatement will always let you get in evidence to do so.

The UCC always lets terms be interpreted, even in a completely integrated writing. You can use course of performance, course of dealing, and usage of trade to interpret a term. If you're using usage of trade, you have to show the other party was a member of that trade or they should have been aware that another interpretation existed.


Keep an eye out for specific merger clauses, which will bar evidence from being admissible even in situations where it otherwise would get in.

I think this is pretty solid. To maybe add more and to share the approach I used:

Parol Evidence Rule Analysis:
A final written agreement, that is completely integrated, can’t be supplemented with any extrinsic evidence
- Fully Integrated: (1) final (2) complete (3) exclusive; exclude all extrinsic evidence
- Partially Integrated: final binding contract but not complete or exclusive
Parol Evidence may never contradict what’s in the writing.
- However, Parol Evidence can be used to interpret a term (regardless of integration)
- 4-Corners Rule: In determining if a writing is fully or partially integrated, only look to the writing itself.
- Contextual Approach: may include Parol evidence to determine whether or not the agreement is fully integrated (look to situation and content)
o Restatement: If the PE would naturally be in the final writing, the writing is fully integrated
o UCC: If the PE would certainly be in the final writing, the writing is fully integrated
A rule of Substantive Law: It provides what the contract actually is
Question of Law: Judge decides issues of Integration and Consistency
Why PER exists:
- Courts prefer written evidence, more accurate
- Fraud prevention

PE only admissible when the writing is not fully integrated, not complete, and the terms are not contradictory.
• If PE is admitted, the fact finder will determine if the oral agreement was part of the contract
• Presumptions can be rebutted by Parol Evidence, as long as the evidence doesn’t contradict any terms (or its not prevented by statute) (Sine)
• Masterson v. Sine: Allowed PE since it wasn’t one that would be naturally made in the written agreement & this should go to jury - Strong dissent (defraud property interests)
• Unique clause may be hard to add to form contract, making it more likely it wouldn’t naturally be in the final writing

[barrelofmonkeys]

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[Kimikho]

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[hukchobo]

tagged

[drumstickies]

quick clarification on the shoe test. i thought i understood it pretty well, but while reviewing through outlining, i got a bit confused.

it's a two-pronged test.
1) look at D's minimum contacts
2) if there are minimum contacts, make sure that jurisdiction doesn't offend "fair play and substantial justice."

In looking at D's minimum contacts (prong 1), are we pretty much just saying it's just purposeful availment? i think i read somewhere that it's also about whether D's actions (or products) are "foreseeable" in the jurisdiction in question. But is there any case to back that up? In World Wide Volkswagen, it was foreseeable that cars would be driven in Oklahoma, but there was no jurisdiction there. Also, in other cases regarding stream of commerce, it's foreseeable, but that's still not sufficient. (Courts seem to be looking for stream of commerce plus, though no concrete holding on it yet; last relevant case was McIntyre.)

hope the question made sense.

[CardozoLaw09]

quick clarification on the shoe test. i thought i understood it pretty well, but while reviewing through outlining, i got a bit confused.

it's a two-pronged test.
1) look at D's minimum contacts
2) if there are minimum contacts, make sure that jurisdiction doesn't offend "fair play and substantial justice."

In looking at D's minimum contacts (prong 1), are we pretty much just saying it's just purposeful availment? i think i read somewhere that it's also about whether D's actions (or products) are "foreseeable" in the jurisdiction in question. But is there any case to back that up? In World Wide Volkswagen, it was foreseeable that cars would be driven in Oklahoma, but there was no jurisdiction there. Also, in other cases regarding stream of commerce, it's foreseeable, but that's still not sufficient. (Courts seem to be looking for stream of commerce plus, though no concrete holding on it yet; last relevant case was McIntyre.)

hope the question made sense.

I think there has to be "minimum contacts" such that the jurisdiction doesn't offend "fair play and substantial justice." So basically D has to have enough of a "presence" in the forum state such that for the jurisdiction to assert personal jurisdiction it does not offend "fair play and substantial justice." I don't actually think it's a two pronged test, though I could be wrong.

[03152016]

@drumstickies

it's not about foreseeability that the product lands in the forum state
the court in volkswagen rejected that: "Every seller of chattels would in effect appoint the chattel his agent for service of process."
it's about foreseeability that one would be subject to litigation in the forum state

i live in ny and you live in nj, and i publish a libelous article about you, damaging your reputation. how foreseeable is it that i'll get sued in nj? (calder)

i live in ny, you live in nj. i submit an affidavit in which i lie about events that occurred between us in fl. how foreseeable is it that i'll get sued in nj? (walden)

@cardozo

idk if contacts and fair play/substantial justice can always be conflated like that
contacts might be undisputed, yet there might be no J because of a lack of interest of the forum state (asahi), or a burden on D so grave as to be unconstitutional (burger king)

[malleus discentium]

@cardozo

idk if contacts and fair play/substantial justice can always be conflated like that
contacts might be undisputed, yet there might be no J because of a lack of interest of the forum state (asahi), or a burden on D so grave as to be unconstitutional (burger king)

Cardozo is correct based on the language of International Shoe: "he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" They aren't two separate tests.

[03152016]

no, it is a two prong test

from the opinion in burger king:
"Nevertheless, minimum requirements inherent in the concept of “fair play and substantial justice” may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities."

fair play and substantial justice form the basis for brennan's "fairness" test in burger king (or o'conner's "reasonableness" test in asahi) which allow for a finding of no personal jurisdiction despite contacts that would otherwise be sufficient

[03152016]

this language from the burger king decision makes it even clearer:

We share the Court of Appeals' broader concerns and therefore reject any talismanic jurisdictional formulas; “the facts of each case must [always] be weighed” in determining whether personal jurisdiction would comport with “fair play and substantial justice.”

here it is clear that it's not the lack of contact with the forum that offends fair play and substantial justice; it's the exercise of personal jurisdiction