Bar Exam (US) Contracts: Question below is based on the following fact situation. Zelda Zellman ...

Question

Question below is based on the following fact situation.

Zelda Zellman went to Dr. Dreck, a dermatologist, for treatment of an abnormal growth on the back of her right shoulder. Under a written contract, Dr. Dreck agreed to surgically remove the growth for $750. As Zelda subsequently recalled, the parties orally agreed that if any additional medical procedures were required during surgery, they would be included in the $750 fee. Dr. Dreck, however, has no recollection of any such oral agreement.

As agreed, the surgery was performed on an out-patient basis at Dr. Dreck's office. He applied a localized anesthesia that enabled Zelda to remain conscious during surgery. While the operation was being performed, Dr. Dreck noticed a brown mole on Zelda's back. As Dr. Dreck subsequently recalled, he informed Zelda about the mole and asked whether she wanted it removed as well. According to Dr. Dreck's account, Zelda orally agreed to have the mole removed for an additional $150. Zelda has no recollection of any such oral agreement.

Dr. Dreck performed both removal procedures satisfactorily. Following the surgery, Zelda paid Dr. Dreck $750, but refused to pay any additional money for the mole removal. After unsuccessfully attempting to collect the $150, Dr. Dreck brought suit against Zelda to recover the additional fee. At trial, Dr. Dreck objects to the introduction of testimony regarding any oral agreement made before the written contract was signed. By the same token, Zelda objects to the introduction of testimony concerning any oral agreement made during surgery.

Under the majority view, will Dr. Dreck be entitled to recover the additional $150 if both offerings of parol evidence are admitted and believed?

AnswerChoose the correct answer.Choose all that apply. Correct Partially correct Incorrect Don't Know

  1. A
    Correct Answer
    No, because the oral agreements contradicted each other, and neither would be enforceable under the socalled knock-out rule of the UCC.
  2. B
    Correct Answer
    No, because in removing the growth from Zelda's shoulder, Dr. Dreck performed a legal duty already owed her that was neither doubtful nor the subject of an honest dispute.
  3. C
    Correct Answer
    Yes, because the oral modification of the prior writing was fair and equitable in view of circumstances not anticipated by the parties when the writing was executed.
  4. D
    Correct Answer
    Yes, because Zelda would be unjustly enriched by not paying the additional $150, and injustice can be avoided only by enforcement of her oral promise.
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