Perf. Phase: Interpretation (Interp.)
Broad Overview of Perf. Phase
- P's Cond's (conditions)
- No duty of imm. perf. & P has no C/A
- Fulfill / Excuse
- Duty of imm. perf. on D
- D's Duty of Imm. Perf. (immediate performance)
- P can have C/A
- Perf. / Discharge
- P has no C/A
- Two Quest's
- What 2 Interp
- Parol evid. rule (PER)
- Incorporation (incorp.) by reference (ref.)
- How 2 Interp.
- ID all possible meanings the lang. can bear
- Characterize each meaning as a type of usage
- Select a meaning
- Given the meaning, legal effect of lang.
- Interp. v. Construction
- Interp. then construe
- Interp. 2 find meaning
- Construction 4 legal effect of provision
- Whereas clause of mere recital of facts
- Cond. 2 somebody's duty
- Promissory cond. where both prom. & cond.
What 2 Interp.
- If written K (substance), then prior/contemp. evid. inadmissible
- Narrows the scope
- Trier of facts in oral v. oral & writing v. oral evid's
- Jury dec's in oral v. oral
- Judge dec's writing v. oral
- Integration (integ.): Is the writing an integ?
- Three dif. possibilities: Can use parol evid. ALWAYS 2 explain
- Written K not an integ. & parol evid. admitted 2 explain,
suppl., / contradict
- Partial integ. then can admit parol evid. only 2 explain &
- Compl. integ. then only 2 explain ambiguities
- Maj. construe narowly
- Only admit parol evid. 4 expressed terms & not w/implied
- Integ. when intended 2 B final
- Final embodiment of @ least part of the doc.
- Note / memo under S/F is not an integ. 4 PER
- Judge consid's all of the writing
- Writing nulls / supersedes oral
- Compl v. Partial Integ.: If it's integ., which is it?
(split of auth.'s on this)
- Conservative Tests
- Wigmore Test
- Subj. matter test of if writing deal w/subj. matter of oral
- Judge must examine the writing, parol evid., & then compare
- Williston Test (maj. jxn)
- Judge consid. writing & parol evid.
- If normally & nat'ly incl'ed in writing, then compl. integ.
- Find compl. integ. a lot by this test
- If purport 2 B compl, then conservative have lots of wt. so
ex. of merger clause superseding all others
- Goals of conservative tests
- Apply what's in writing
- Max. commercial stability & cert. in process
- Cost of frustration of indiv. parties v. eff. & predictability
4 client & ct.
- Doubt jury on ability 2 properly weigh
- Liberal Tests
- Corbin Test (endorssed by Traynor)
- Depreciate writing & appreciate extrinsic evid.
- Not accept compl. on its fact & want 2 see it actually
incl'ed in K, not nat'ly
- Dislike Wigmore test b/c subj. matter not self def'ing term
& not yield predicabiltiy / cert.
- Dislike Williston test b/c uncert. in the process
- UCC §2-202 (Comment 3)
- Whether rsbl 2 incl. additional in the writing by rsbl parties
- Obj. test but not as far as Corbin test
- Substitutes normally & nat'ly w/certainly of Williston
test so partial integ. gen'ly
- Co-existence of Views
- Maj. follow Williston but UCC §2-202 4 pers. prop
- Exceptions 2 PER
- Consistent Oral Cond. Precedent 2 Effectiveness of Written
- Consistent & nat. of cond. precedent 2 writing testing
effectiveness of writing as K
- Not really an exception b/c rel. 2 formation phase of negating
finality 2 find a K
- Abused doc. b/c should only allow evid. of non-K but ct allows
perf. phase evid.
- Proof of Facts Triggering Enforceability Doc.'s (mistake,
- Not really an exception b/c if facts negate enforceability,
back up 2 formation phase
- Sep. Collateral Oral Agmt: Sep. Indep. Compl. Oral K
- View 1: Not recog.
- View 2: Recog. but not permit contradiction
- Subseq. Oral Modification
- Not part of PRE b/c PRE only excl. prior / concurr. oral agmts
- No oral modification clauses R creation of the parties so
should B able 2 rescind later
- Maj. View: Rest & UCC §2-209
- Sub 2: gen'ly will give effect 2 no oral modific. clause 4
good busi. practice
- Sub 5: list circ's of not enforcing & stand. 4 enforce
when rsbl notific. received by other party & unjust b/c material
change of position by reliance
- Substance over form so only dep. on irreversible reliance,
not on express waiver
- Musmanno View: Need express waiver so form over substance
- Incorp. by Ref.
- Expands the Scope
- Adeq. manifest intention 2 incorp. by ref. of writing, oral,
/ custom is fine 2 trigger the doc.
- Human can't foresee everything
- Mechanical enforcement leads 2 lopsided result so rewrite
- If not result in lopsided result, gen'ly won't imply terms
- PRE & Implication
- If PRE precl's oralevid., then that part. oral evid. can't
B consid'ed 4 implication
- Three Types of Implication
- Implied in fact terms by actual intent
- Implied in fact terms by interp. intent
- Implied in law terms w/o intents
- Implied In Fact Terms By Actual Intent
- Subj. test that actually / probably had provision in minds
- Quest. of inference
- Evid. 2 Imply From
- Structure of barg
- Course of dealing: series of deals btwn same parties of other
K's where acted consistently even though no express prom.
- Trade custom: expect member of trade w/cert. oblgn & change
those by express negation
- Implied In Fact Terms Based on Interp. Intent
- Parties' orig. subj. intent +
- Rsbl obj. parties stand. b/c of unforeseen devt & apply
what rsbl parties would think nec.
- Making new K 2 fill in the gap of unforeseen contingency
- Corbin analysis states only imply gap when rsbl & nec.
2 avoid 1 sided & lopsided result b/c lwring freedom of K
- Dif. from 1st implied in fact terms b/c fund. orig. intent
not effectuated unless imply
- Implied In Law Terms
- No parties' orig. intent
- Use obj. soc. norms that dictate & override implication
- Ex's of good faith & UCC 4 any type
- Implied Prom's
- Best effort (2nd implied in fact)
- Maintain level of reqt: C/L div'ed but 2nd implied in fact
- Good faith
- Implied in law
- Gen'ly no relief unless can show alt. motive other than no
- Limitation of Implication
- Can't imply if contradict express lang. of K
- Explicitly Draft Foreseeable Prob.
How 2 Interp.
- Words R symbols which acquire meaning by usage / convention
- Interp. Process: Structured Policy Driven Process
- Proced.: ID all possible sources / meanings
- Intrinsic material of text of part. writing, K 4 words itself,
dictionary & context of part of K in same page, other pages,
- Extrinsic material of prelim. negotiations, ind. stand's,
& trade custom
- Subseq. conduct before falling out as circ. evid.
- Stand. of Proof: Characterize Each Meaning As Type of
- Pop. / gen.
- Dictionary / avg person's def.
- Pub. opinion survey
- Geog. areas, trade custom, / part. trade in geog. area
- Est. existence of usage (see split btwn obj. v. subj. below)
- Party knew / notice of existence b/c long term member of trade
- Meaning both parties had @ X of K
- Est. when 1 says & other hears
- Dif. meaning each parties had @ X of K
- Pers. knowledge of S/M before signing
- If agents, bound by what they say in participation of negotiation
- Each type is quest. of fact
- Order of Pref: Select A Meaning
- Policy arg. & quest. of law
- Primary basis 4 order of pref.
- Williston v. Cobin
- Both agree order of pref. adeq. basis enough 4 analysis
- Both agree if pop. v. indiv., prefer pop.
- Secondary basis
- Canons / maxims if primary fails
- Vague so can't rely on them & if ct does, masking policy
- Commercially rsbl interp.
- If part. interp. makes 1 side lose a lot, not pick that 1
- Expressio unius
- Expressly mention 1 thing, then negly imply excl.
- Ejusdem generis
- Gen'ed lang. @ the end of K must B construed contextually
by K lang.
- Limiting maxim b/c take same common denominator as expressed
- Indep. Force & Effect
- Ct. would pick interp. that's indep. force & effect if
1 interp. indep & other redundant 4 interp'ing clauses
- Reject surplussage b/c drafters wouldn't want it
- Hurried process, then this maxim not make sense
- Parties View of All Clauses
- If parties look @ all clauses, simultaneous signing, then
meaning of 1 can elim. ambiguity of another
- Contra Prefertum
- Draft K precisely / resolve ambiguities against drafters
- Pub. Int. of Free Alienability (in real estate)
- Obj. v. Subj. in Proced, Stand. of Proof, & Order
- Obj. Approach (Williston, maj. jxn)
- Proced.: if see plain meaning on face of writing no extrinsic
so need 2 find ambiguity 2 admit extrinsic material
- Proof: skew so that only need writing & dictionary so
want strict stand. 4 trade custom (Williston)
- Policy 4 Pref. of Order: gen'ly prefer pop. & not use
indiv, mutual, / limited usage w/o more
- Mutual if reflected on K's face like glossary
- Limited, grudgingly b/c not want 2 force busi. into writing
- In each step, skewed 2 reach pop. usage
- Subj. Approach (Traynor, Friendly, Corbin, & UCC)
- Proced.: no need 2 find ambiguity before going 2 extrinsic
- Proof: Corbin wants lax stand. of proof b/c like parties'
intent & UCC §1-205)2 says reg. justifiex expectation
will B observed so relaxes on trade custom stand.
- Policy 4 Pref. of Order: Corbin likes parties' intention b/c
plain meaning is illusory
- UCC §2-202)a allows course of dealing, usage of trade,
/ course of perf. w/o use of ambiguity
- Must follow same policy in each step of either obj. / subj.
4 consistent result
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