6) Defenses

Question 1

defenses: result

Answer 1

1) defense in a breach of k suit (to use to make the k go away)

Question 2

defenses: result: exception

Answer 2

unconscionability different

Question 3

infancy/incapacity: result

Answer 3

defense

Question 4

misrepresentation: result

Answer 4

defense

Question 5

duress: result

Answer 5

defense

Question 6

undue influence: result

Answer 6

defense

Question 7

public policy: result

Answer 7

defense

Question 8

defenses: CL or UCC?

Answer 8

both (UCC as supplement)

Question 9

infancy/incapacity? CL or UCC?

Answer 9

both (UCC as supplement)

Question 10

misrepresentaiton: CL or UCC?

Answer 10

both (UCC as supplement)

Question 11

duress: CL or UCC?

Answer 11

both (UCC as supplement)

Question 12

undue influence: CL or UCC?

Answer 12

both (UCC as supplement)

Question 13

unconscionability: CL or UCC?

Answer 13

both (UCC as supplement)

Question 14

public policy: CL or UCC?

Answer 14

both (UCC as supplement)

Question 15

defenses (list)

Answer 15

1) infancy/incapacity
2) misrepresentaiton
3) duress
4) undue influence
5) unconscionability
6) public policy

Question 16

incapacity: kinds

Answer 16

1) infancy

2) mental incompetence

Question 17

infancy: rule

Answer 17

minor can k, but voidable AT MINOR’S OPTION

Question 18

infancy: effect of marriage/emancipation

Answer 18

none (majority of js)

Question 19

infancy: effect of misrepresenting minor’s age

Answer 19

none (majority of js)

Question 20

infancy: result if disaffirms k

Answer 20

1) minor must return goods received
2) minor NOT liable for damages
3) minor NOT liable for reasonable value of use (exception)

Question 21

infancy: result if disaffirms k: exception

Answer 21

necessaries: CAN recover reasonable value of goods/services (in quasi-k)

Question 22

infancy: ratification (inc result)

Answer 22

1) after turn 18
2) can be express or implied
3) result: now bound and can’t disaffirm anymore

Question 23

ratification: implied

Answer 23

continuing to use the thing after turning 18 / becoming competent

Question 24

infancy: def

Answer 24

under 18

Question 25

mental incompetence: def

Answer 25

can't reasonably understand the transaction at time of k

Question 26

mental incompetence: rule

Answer 26

if mentally incompetent AT TIME ENTERED k, then can disaffirm the k

Question 27

incompetence: result if disaffirms k

Answer 27

1) must return goods received 2) YES liable for damages 3) YES liable for reasonable value of use

Question 28

difference: incompetence vs infancy

Answer 28

after disaffirming k, infant not liable for damages or reasonable value of use, but incompetent is

Question 29

incompetence: ratification (inc result)

Answer 29

1) after becomes competent 2) can be express or implied 3) result: now bound and can't disaffirm anymore

Question 30

incomptence: necessaries include

Answer 30

legal rep for incompetency proceedings

Question 31

misrepresentation: types

Answer 31

1) fraudulent misrep 2) nonfraudulent misrep 3) fraudulent nondisclosure

Question 32

misrep: fraudulent misrep: elements

Answer 32

1) misrepresentation 2) state of mind 3) materiality of misrep 4) reasonable reliance on the misrep

Question 33

misrep: (elements): misrepresentation: def

Answer 33

D's assertion inconsistent w existing facts

Question 34

misrep: (elements): misrepresentation: examples

Answer 34

1) oral or written misrep 2) conduct (ex. concealment) 3) half-truth

Question 35

misrep: (elements): misrepresentation: NOT a misrep

Answer 35

1) broken promise (has to be inconsistent w EXISTING facts) | 2) opinion/guess

Question 36

misrep: (elements): fraudulent state of mind: elements

Answer 36

1) scienter AND | 2) intent to mislead

Question 37

misrep: (elements): fraudulent state of mind: scienter: def

Answer 37

D made assertion knowing it to be false OR had no idea if true or false

Question 38

misrep: (elements): state of mind: intent to mislead: def

Answer 38

D made assertion for the purpose of misleading aggrieved party OR knowing substantial likelihood to mislead

Question 39

misrep: (elements): materiality: kinds

Answer 39

either objective OR subjective suffiicent

Question 40

misrep: (elements): materiality: objective (def)

Answer 40

assertion is likely to induce a reasonable person to enter a k

Question 41

misrep: (elements): materiality: subjective (def)

Answer 41

the party making the assertion had reason to know it was likely to induce the particular aggrieved party to enter the k

Question 42

misrep: (elements): reasonable reliance: def

Answer 42

must be reasonable that you relied on the misrep

Question 43

misrep: (elements): reasonable reliance: examples of when NOT met

Answer 43

1) aggrieved party has independent knowledge that st is false 2) aggrieved party knows the sayer is unreliable 3) no reasonable person would believe 4) could have easily ascertained truth by cursory inspection of goods

Question 44

misrep: non-fraudulent misrep: elements

Answer 44

1) misrep 2) material 3) reasonable reliance 4) state of mind DIFFERENT

Question 45

misrep: non-fraudulent misrep: state of mind: kinds

Answer 45

1) negligent | 2) innocent

Question 46

misrep: non-fraudulent misrep: state of mind: negligent

Answer 46

D (liar) would have known assertion was false if he had exercised reasonable case

Question 47

misrep: non-fraudulent misrep: state of mind: innocent

Answer 47

D (liar) made an assertion not in accord w existing facts

Question 48

misrep: fraudulent nondisclosure: elements

Answer 48

1) material 2) reasonable reliance 3) DUTY OF DISCLOSURE AND FAILURE TO FULFILL

Question 49

misrep: fraudulent nondisclosure: when is there a duty to disclose?

Answer 49

default: no duty 1) material facts unlikely to be discovered by other party exercising ordinary care AND 2) rship of trust OR made assertion that was true and now isn't OR good faith would require

Question 50

duress: elements

Answer 50

1) threat 2) wrongful 3) no reasonable choice but to succumb (economic cases)

Question 51

duress: elements: wrongful: kinds

Answer 51

1) threat of crime or tort 2) threat of crim prosecution or bad faith civil process 3) threat of bad faith breach (economic duress)

Question 52

duress: no reasonable choice but to succumb: examples

Answer 52

no substitutes, threatened party would have to breach own ks acquiescing to threat then suing for damages is inadequate for harm caused

Question 53

undue influence: elements

Answer 53

1) unfair persuasion AND | 2) other party vulnerable to the persuasion

Question 54

undue influence: unfair persuasion: Factors

Answer 54

need 1+: 1) unusual/inappropriate time to discuss 2) consumation of t. at unusual place 3) insistent demands: immediately 4) extreme emphasis on consequences of delay 5) multiple persuaders 6) no 3rd party advisors for target 7) "no time to consult"

Question 55

undue influence: other party vulnerable: examples

Answer 55

mental infirmity (age/illness) vulnerable to recent trauma/event rship of trust/confidence

Question 56

unconscionability: elements

Answer 56

1) procedural unconscionability AND | 2) substantive unconscionability

Question 57

unconscionability: procedural u. : def

Answer 57

bargaining process created absence of meaningful choice for aggrieved party (won't have if 2 powerful companies)

Question 58

unconscionability: substantive u.: def

Answer 58

k terms are unreasoanbly favorable to one party to the k

Question 59

unconscionability: result

Answer 59

court MAY: 1) refuse to enforce k 2) enforce, but w/o the bad clause 3) limit APPLICATION of the bad clause to avoid u. result

Question 60

public policy: kinds

Answer 60

1) subject of k is specifically prohibited by law (prostitution) 2) k formed for purpose of committing crime or tort 3) performance would violate values/freedoms from state