Sales and Leases | 74
loaded, and shipped. A letter from the buyer to the seller, dated April 15, indicated that the buyer would bear the cost to disassemble and ship the press. Here, the April 15 letter is admissible to indicate whether the buyer or the seller was responsible to disassemble and ship the press. The agreement was silent on this issue, so the letter’s terms contradicted nothing in the agreement. [ See De La Morena v. Ingenieria E Maquinaria de Guadalupe, S.A. , 56 S.W.3d 652 (Tex. Ct. App. 2001).] Compare : A winery entered a written agreement with a distributor, under which the distributor would buy wine from the winery to resell throughout State A. The agreement provided that “either party may terminate this agreement on 12 months’ notice to the other.” Nothing in the agreement required cause for termination or articulated any conditions or restrictions on either party’s ability to terminate the agreement, apart from the notice requirement. Sometime later, the winery sought to terminate the agreement, and the distributor sued. The distributor sought to prove that the winery orally agreed to terminate the agreement only if wine sales in State A fell below a certain threshold, which they never did. Article 2’s parol-evidence rule bars this evidence. The sales-based restriction on the winery’s power to terminate the agreement placed a condition on that power that did not appear in the agreement itself. Thus, the restriction contradicted the agreement. [ Adapted from Joseph Victori Wines, Inc. v. Viña Santa Carolina S.A. , 933 F.Supp. 347 (S.D.N.Y. 1996).] 7. Collateral Undertakings Article 2’s parol-evidence rule does not bar extrinsic evidence of collateral undertakings. A collateral undertaking is an agreement that is collateral to, and independent of, a contract for the sale of goods to which Article 2’s parol-evidence rule applies. Typically, a collateral undertaking contains terms sufficiently unrelated to the contract for the sale of goods that the parties would not necessarily have thought to include those terms in the sales contract. On the other hand, some terms are such that, had the parties intended to be bound by them, they would virtually certainly have appeared in the agreement. These kinds of terms are not consistent additional terms, so the parol-evidence rule bars them. [ See U.C.C. § 2-202, cmt. 3 (1951); Bird Lakes Development Corp. v. Meruelo , 626 So.2d 234 (Fla. Dist. Ct. App. 1993) (applying common-law parol-evidence rule to real estate transaction); Consistent Additional Terms, supra .] Example : A developer entered two separate agreements with a contractor. The first called for the contractor to sell the developer a massive water tank, a good, for $500,000. The second obliged the contractor to install sewer systems in the land on which the developer planned to store and maintain the water tank. In a suit based on the contract for sale of the water tank,
Made with FlippingBook - Online Brochure Maker