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A

Here, there actually was a legit agr’t, but it got written down wrong.  Problem is simply in the written record.  (Travelers)

B

Reformation ELTS:  (Travelers)

1

There has been no prejudice to other party by reliance

2

OR if other party’s reliance may be compensated

C

Parol ev rule doesn’t apply b/c we DID memorialize the written agr’t here, we just did it incorrectly

D

Interpretation v. transcription error ex:

1

Interp: A advertises car “as is.”  B buys it.  B has trouble w/ the car, and A refuses to cover problems.  B claims he thought “as is” meant “with all the accessories,” not “no warranty.”  This is a question of interp

2

Transcription: A and B orally agree that A will provide a warranty for the car.  B buys it, but signs K w/ language “car sold as is.”  B would claim transcription error, seek reformation

a

TODO this is pretty close to parol ev rule territory

E

Remedy = reformation.  Must show true agr’t w/ C&C evidence

V

Nondisclosure

A

Duty to disclose if:  (Hill — termites)

1

Spec rel’p

2

OR material fact known to one couldn’t be discovered by other party w/ r’ble diligence (esp where seller has info)

B

If A doesn’t have duty to disclose, but B ASKS, and A lies, that’s misrepresentation: no K.  (Rest § 159)

C

If A doesn’t have a duty to disclose, but says something that, while strictly true, is likely to give false impression, that is misrep

D

No fraud where low-priced goods made to look like more valuable items indeed turn out to not be valuable.  Low price alerts buyer.  (Buyer of painting repro made to look old; buyer of costume jewelry)

E

Eisenberg thinks there should be a presumption that disclosure is req’d — but presumption could be overcome w/ econ efficiency justification

Defenses — Changed Circumstances

I

Gen’y

A

Frustration and impracticability doctrines are devices for assigning risk

B

Thus, if K explicitly assigns risk, cts should be hesitant to change this assignment of risk

C

Change circums v. mistake

1

Both involve problems involving tacit assumptions underlying K

2

Changed circums, problem arises after K; mistake, problem arises before K

3

Changed circums don’t come to light until later, when eggs have already been scrambled

4

Changed circums can be insured against; mistake usu can’t be insured against

D

Changed circums are clearly not a defense against restitution; big question is whether changed circums are a defense against exp dams?

E

Ex ante v. ex post approach to RISK ASSIGNMENT based on changed circums

1

Ex ante: what would parties have agreed to when they formed the K?

2

Ex post: let’s allocate risk fairly based on how things turned out

II

Impracticability

A

Something is legally impossible when it is NOT PRACTICABLE; when it can only be done at an excessive and unr’ble cost

B

Perf excused w/ ELTS:  (Transatlantic) (see Rest § 261)

1

Perf is impracticable due to OCCURRENCE of an event the NON-OCCURRENCE of which was a BASIC assumption of the K

2

AND event was not fault of party seeking avoidance

3

AND party seeking avoidance didn’t assume the risk of the unexpected occurrence.  (Wegematic)

30

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