Contracts Flashcards
1
Q
How to start a Contracts Essay?
A
- What law applies?
- State the rule!
- Common Law v. UCC
- Services or Goods
- *If *UCC Applies –>
- Define goods under Article 2 of UCC – “all things moveable at the time they are identified as the goods to be sold under contract.”
- Merchants?
- Then IF UCC APPLIES, discuss whether parties are merchants.
- Merchants = Buyer/Seller who regularly deals in goods of the kind sold.
- Then IF UCC APPLIES, discuss whether parties are merchants.
2
Q
What is the Checklist Approach to Contracts?
A
- Formation
- Defenses to Formation
- Defenses to Enforcement
- Stuatute of Frauds
- Unconscionability
- 3PB / Assignees
- Construction
- PER
- Conditions
- Breach
- Excuses/Discharge
- Remedies
3
Q
What are the parts of Formation?
A
- Offer
- Revocation
- Acceptance
- Counter-Offer
- Rejection
- Consideration
4
Q
What is an Offer?
A
- A promise, undertaking, or commitment to enter into a contract;
- With the essential terms certain and definite; and
- Communication of the promise and the terms to the offeree
5
Q
Revocation
A
- Direct and indirect revocation
- Revocation at will
- Not permitted where:
- Consideration given by offeree
- Merchant’s firm offer
- Limited to 3 months
- Detrimental reliance
- Not permitted where:
6
Q
Acceptance
A
- An unqualified assent to the terms of an offer
- Must be communicated to the Offeror
- May be accepted by any medium reasonable under the circumstances, except where an offer limits the form of acceptance, then offer must comply with limitations
- Conditional Acceptance ≠ Acceptance; = rejection
- Counteroffer operates as both rejection and new offer under common law
7
Q
Acceptance with varying terms
A
UCC 2-207
- Analysis:
- Do you have Additional or Different Terms?
- If Different Terms, Start with Majority Rule –Knock-Out Rule
- UCC Gap filler – normally course of performance or usage of trade
- If Different Terms, Start with Majority Rule –Knock-Out Rule
- Then go to Additional Term Analysis (or start here if only additional terms)
- As between Merchants additional terms become a part of the contract UNLESS:
- 1. Offer expressly limits acceptance to the terms of the offer, OR
- 2. They materially alter the offer; OR
- 3. notification of objection to the additional or different terms is given within a reasonable time after notice is received.
- As between Merchants additional terms become a part of the contract UNLESS:
- Do you have Additional or Different Terms?
8
Q
Consideration
A
- Requires a bargained-for exchange
- Almost never need to discuss adequacy
- Not a big essay issue – unless past or moral consideration.
- If so, THEN discuss and apply promissory estoppel:
-
2 part Analysis:
- The promisor should reasonably expect to induce definite or substantial action or forbearance; and
- Sucha citon or forbearance is in fact induced.
-
2 part Analysis:
- If so, THEN discuss and apply promissory estoppel:
9
Q
Defenses to Formation
A
Must exist at time of contract formation:
- Mistake
- Fraud
- Illegality
- Capacity
10
Q
Defenses to Enforcement
A
- Statute of Frauds
- Unconscionable Contract
11
Q
Approach to Statute of Frauds
A
- Is the Contract Oral?
- Is it the kind that is subject to S/F?
-
MUST be in writing if involves:
- Promise to pay debt of another
- Any interest in land (leases, easements, deeds of trust)
- If can’t be performed within 1 year
- Sale of goods $500 or more ($5k under UCC)
-
MUST be in writing if involves:
-
Exceptions:
- Admission
- Full performance if K is for sale of goods/services
- I contract is for real property, any 2 of:
- Performance by payment (whole or part)
- Possession
- Making of valuable improvements
12
Q
Unconscionability
A
- Look for:
- One-sided COntract at tiem it was formed (especially pre-printed)
- Unequal bargaining power
- Usually on MBE, not Essay
13
Q
Third Party Beneficiaries
A
- Parties = Promisor, Promisee, 3PB
- Issues:
- Intended or Incidental?
- Incidental cannot enforce
- Creditor or Donee?
- Vesting:
- Assent to Agreement
- Detrimental Reliance
- Sue to enforce
- Defenses
- Intended or Incidental?
14
Q
Assignment of Rights
A
- It’s the transfer of rights
-
3 Issues:
- __What rights may be assigned?
- All except those that change obligor’s duty
- What is required for an assignment?
- No writing required except for:
- Interests in land
- Wage assignments
- Security interest
- Choses in action > $5k
- No writing required except for:
- When is an assignment irrevocable?
- If given for consideration
- Obligor performed
- Delivery of tangible claim
- Assignment of chose in action in qriting
- Foreseeable detrimental reliance
- __What rights may be assigned?
15
Q
Delegation
A
- Delegation of duties, rather than entire contract
- CANNOT delegate duties involving personal skill/judgment
- Delgator always liable
- Delegate liable to non-delegating party only if:
- Delegate performs OR
- Delegate peromises to perform and it is supported by consideration.
