Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

#law > week5 > Flashcards

week5 Flashcards

1
Q 
#definition
Discharge
A

legal term describing completion or termination of the contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

4 ways for a contract to be discharged?

A

performance
agreement of parties
frustration
breach

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q 
#definition
performance - fulfillment, accomplishment
A

execution of a contract by which contracting parties are automatically discharged of their obligations under it.

most contracts require complete performance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q 
#definition
substantial performance doctrine
A

sometimes the law allows for substantial performance to discharge a contract
(most of the promise has been met with only slight modification from original terms)

rain => paint next week

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q 
#definition 
partial performance
A

make a 2nd contract, agrees to accept partial performance & pay work done on the basis of quantum meruit (

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

quantum meruit

A

as much as he deserves - reasonable remuneration for work performed.

The law implies a promise to pay a reasonable
amount for labor & materials furnished, even
absent a specific contract therefore.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

4 require elements to quantum meruit

A
  • valuable services were rendered// materials furnished
  • for a person sought to be charged
  • services and material were accepted, used and enjoyed by him
  • plaintiff expected to be paid
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

2 types of discharge by Agreement of parties

A

accord and satisfaction

mutual rescission

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Accord and Satisfaction

A

discharge a contract in that the parties agree to substitute a new performance in place of an existing obligation
ex:

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

mutual rescission

A

both parties agree to release the other from any obligation to the promise made in the original agreement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

3 types of Frustration

A
  • Impossibility (unavailability, destruction of the specific subject matter, force majeure)
  • Bankruptcy
  • Supervening illegality (exception: grandfather clause)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Breach of contract?

A

(One party fails in a material way to perform the terms as agreed)

Failure, without legal excuse, to perform any promise which forms part of the contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

material breach

A

a breach that affects the entire agreement

involves changes in details of the contract that changes the main agreement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

non-material breach

A

the breach involves smaller details of the contract that do not affect the overall contract.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

anticipatory breach

A

one party to a contract clearly states/implies he/she will /can not perform as agreed, even though the time of performance has not yet arrived.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

expressed conditions

A

conditions that the contracting parties deliberately create in making contract, agreed upon essential element of the contract

on the condition that, subject to, time is if the essence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

implied condition

A

conditions that are implied by the nature of transaction even though they are not expressly/consciously stated by the parties

seller has the right to sell goods, goods will correspond with the description, satisfactory quality….

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

remedies for breach of contract

A

compensation due to the nonbreaching party to recover financial loss/injury caused by the
breach
- Money Damages
- Specific Performance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

mutual assent may be lacking …

A

misrepresentation
mistake
duress
undue influence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

what is Misrepresentation?

A

untrue statement or fact made by one of the parties which induced the other party to enter the contract.

21
Q

2 requirements of Misrepresentation?

A
  • the untrue statement was one of fact

- the untrue statement induced the party to enter

22
Q

Fraudulent Misrepresentation

requirement for a finding of Fraud

A

an actionable misrepresentation made knowing

  • it was false
  • without belief in its truth
  • recklessly, carelessly whether it was true or false
23
Q 
#definition
Mistake?
A

only a mistake of fact allows a contract to be cancelled.

24
Q

3 types of mistake

A
  • Bilateral (mutual) mistake : mistake of material fact, can be rescind by both parties
  • Unilateral mistake can not be cancelled, UNLESS if other party knows a mistake of fact has made
  • Mistake in Value/ Quality : generally enforceable
25
Q

what is Duress?

A 
forcing a party to enter into a contract under fear/threat => voidable
threatened must be wrongful/illegal
improper threat (economic, physical, psychological...)
26
Q

Undue Influence

A
  • confidential / fiduciary relationship (physician and patient, husband and wife)
  • relationship of dependence
  • influence of persuasion
  • weak party is talked into doing something not beneficial to him/herself
27
Q

actionable misrepresentation

A

untrue statement of fact made by one of the parties which induced the other to make the contract.

28
Q

can silence amount to an actionable misrepresentation?

A

generally not.

yes, if

  • where there has been a change of circumstances
  • where the contract is of the utmost good faith
  • where there is a fiduciary relationship between parties
  • where the silence makes a statement misleading
29
Q

a non-fraudulent misrepresentation will be a negligent misrepresentation unless …

A

the maker prove that
- he had reasonable grounds for believing that it was true
- did hold such a belief up until the time of the contract
=> wholly innocently

30
Q

what remedies are available in respect of a NEGLIGENT misrepresentation?

A

there’s a right to damages for negligent misrepresentation, which are assessed on the tort of deceit basis.

the contract will be voidable, but the court may award damages

31
Q

what remedies are available in respect of a FRAUDULENT misrepresentation ?

A

FM makes the contract voidable and gives rise to an action for damages for the tort of deceit.

32
Q

what remedies are available in respect of a WHOLLY INNOCENT misrepresentation ?

A

there is no right to damages.

the contract may be voidable.

33
Q

in what circumstances can damages be awarded?

how will them be assessed?

A

in lieu of rescission

assessed on the breach of warranty basis

34
Q

in what circumstances will the right to rescind a contract for misrepresentation be lost?

A

if the contract has been affirmed
if restitution is impossible
if a third party in good faith has acquired ownership of the subject matter.

35
Q

a contract which is held to be void for a mistake is …

A

a nullity.
it can not give rise to contractual rights or obligations. If goods are sold under a contract which is void for mistake, the ownership will not pass to the buyer and the seller will have to refund the purchase price.

36
Q

3 matters can make mistake

A
  • the existence of the subject matter of the contract (void)
  • the ownership of the contract (void)
  • the quality (unlikely)
37
Q

2 factors might a unilateral mistake be made?

A

identity of the contract party

terms of contract

38
Q

mistake of identity of contract party will be void if…

A
  • parties made written contract without face to face meeting
  • the mistake was as to the identity of the other party
  • it was a material mistake which was known to the other party
39
Q

unilateral mistake of terms of contract will be void if…

A

the party who is not mistaken could not reasonably have supposed that the other party intended to contract on the terms which are agreed.

40
Q

Historically, the common law held a contract voidable for duress only if …

A

the contract was a consequence of physical violence or threat of it.

41
Q

a contract can be voidable for economic duress if…

A

it was entered into as a consequence of commercial pressure

42
Q

relationship that undue influence is automatically presumed?

A 
solicitor and client
doctor and patient
parent and kid
guardian and ward
trustee and beneficiary
religious adviser and disciple
=> contract will be voidable at the option of the influenced party unless the other party can prove that there was no undue influence/
43
Q

if there is no close relationship, in what circumstances will undue influence be presume?

A

if the influenced party proves that he placed great trust and confidence in other party
and the contract entered into could not easily be explained by the relationship between them

44
Q

a contract can be frustrated if…

A
  • the subject matter of the contract ceases to exit
  • a person who was to perform become unavailable
  • an event which was central to the contract has not occurred
  • the contract become illegal to perform
45
Q

if the frustrating event is the fault of one of the parties ///

A

that party can not claim that contract was frustrated

46
Q

a force majeure clause is…

A

a clause in the contract which provides what should happen if the frustrating event occurs.
the clause has legal effect.

47
Q

if a party faces a repudiatory anticipatory breach, it can…

A
  • treat the contract for discharged and sue for damages
  • affirm the contract, sue later when actual breach occurs
  • if the contract can still be performed without the other party, it can do it and sue for contract price
48
Q

2 rules in Hadley x Baxendale

A
  • damages can be claimed in respect of a loss if the loss arose naturally from the breach according to the usual course of things
  • damages can be claimed in respect of a loss if both parties contemplated the loss would be a probable result of breach at the time they made the contract
49
Q

when breach appears probable but nor certain, the innocent party should…

A

demand assurance that the contract will be performed.

#law (5 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions