contract law

A process used when a contract fails to deal with some manner necessary for the contract to be performed. The court either interprets the contract in such a manner that there is no gap, or engages in gap filling where it deals with the gap in the contract by ascertaining what the parties intentions would have been at the time that they entered the contract. In the process of gap filling and determining the parties intentions, courts look to the terms of the contract itself, course of dealing, usage of trade, and course of performance, amongst other things.

Under section 2-313 of the Uniform Commercial Code, when determining whether an express warranty exists or is valid in a sale of goods between two parties, the court asks if any promise or affirmation, any description of the goods or any sample or model of the goods displayed by a seller “became a basis of the bargain” between a buyer and a seller thereby creating an express warranty on the goods.

In contract law, a defense that can be used by a party to argue against the formation of a binding contract between two parties. To prove economic duress, a party must show that (1) a continuous contract exists between the plaintiff and the defendant; (2) the defendant threatens to terminate the preexisting contract; and (3) the plaintiff under this duress accepts the defendant’s terms and enters the contract.

Definition

A buyer, especially of real property.

Illustrative caselaw

See, e.g. Warner v. Kaplan, 892 N.Y.S.2d 311 (N.Y. App. Div. 2009).

See also 

• Vendor (contrast)

• Contract

Definition

A seller, especially of real property. Also called venditor.

Illustrative caselaw

See, e.g. American Needle, Inc. v. National Football League, 130 S.Ct. 2201 (2010).

See also 

• Vendee (contrast)

• Contract

Under contract law, a plaintiff can recover from a defendant on the grounds of fraudulent concealment where the defendant (1) concealed or suppressed a material fact;  (2)  had knowledge of this material fact; (3) that this material fact was not within reasonably diligent attention, observation, and judgment of the plaintiff; (4) that the deferndant suppressed or concealed this fact with the intention that the plaintiff be misled as to the true condition of the property; (5) that the plaintiff was reasonably so misled; and (6) that the plaintiff suffered damage as a result.

Under contract law, a plaintiff can recover against a defendant on the grounds of fraudulent misrepresentation if (1) a representation was made; (2) that was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth; (4) that it was made with the intention that the plaintiff rely on it; (5) that the plaintiff did rely on it; and (6) that the plaintiff suffered damages as a result.

Under section 2 of the Uniform Commercial Code, usage of trade is often used to aid in interpreting contracts and to give terms particular meaninings. A usage of trade is a practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction.

Often used to aid in contract interpretation, a course of dealing is a sequence of previous conduct between the parties which is regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.

Typically available to buyers or sellers, courts will often award incidental damages to the party injured by the breach of another party for the costs of transporting the goods or arranging to cover the contract after the breach occurs, or any other damages reasonably related to the damages caused by the breach.