Parol evidence under the UCC - Next Generation Bar Exam

1. Under UCC 2-202, when are consistent additional terms excluded?

   When the court finds the writing was intended as a complete and exclusive statement of the terms. Absent such a finding, consistent additional terms may be proved.

2. Under UCC 2-202, what kinds of writings receive parol evidence protection?

   Writings the parties intended as a final expression of their agreement on the terms included. Confirmatory memoranda that the parties agree on are treated the same way.

3. Under the UCC commentary, what must a writing do to exclude evidence of usage of trade?

   Carefully and expressly negate it. A general merger clause alone is usually not enough.

4. A sales writing, not intended as complete, says nothing about delivery time. The seller offers evidence of an earlier oral agreement for delivery in 90 days. On what basis is it admissible?

   It is a consistent additional term. The writing is not a complete and exclusive statement, and the term does not contradict it.

5. What threshold finding does UCC 2-202 not require before admitting usage of trade to explain a term?

   A finding that the term is ambiguous. Trade usage may explain an apparently unambiguous term because it is part of the parties' commercial context.

6. Under the UCC commentary, which consistent additional terms are excluded as a matter of course?

   Terms that, if agreed upon, would certainly have been included in the writing. The UCC's test is more permissive than the common-law 'naturally omitted' test.

7. A lumber buyer claims a '2x4' must measure exactly two by four inches. On what basis may the seller show that, in the trade, the term means a board about 1.5 by 3.5 inches?

   Usage of trade may explain the meaning of a term in the writing. Explaining a term by trade usage does not contradict it.

8. A final sales writing states a price of $10 per unit. On what ground may the buyer not prove an earlier oral agreement at $8?

   The earlier agreement would contradict a term of the final writing. UCC 2-202 bars evidence of prior agreements that contradict terms in a final writing.

9. Under UCC 2-202, which evidence may explain or supplement even a final writing?

   Course of performance, course of dealing, and usage of trade. These sources are part of the commercial context in which the parties wrote their agreement.

10. Under UCC 2-202, what evidence may not be used to contradict a final writing?

    Evidence of any prior agreement or of a contemporaneous oral agreement. The bar on contradiction applies whether the writing is complete or only final as to its terms.

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