Attack Outline 2/15 Flashcards
(96 cards)
1
Q
What law governs contracts pertaining to the sale of goods?
A
The UCC
The Uniform Commercial Code (UCC) applies to transactions involving the sale of goods.
2
Q
How are goods defined in the context of contracts?
A
Tangible and moveable items
Goods are generally associated with a seller and buyer deemed as merchants.
3
Q
Who is considered a merchant?
A
Someone who regularly deals in the sale of goods.
4
Q
What governs contracts for services or real property?
A
Common law.
5
Q
What is the predominant purpose test?
A
A test to determine the governing law when a contract involves both goods and services.
6
Q
What are the three elements required to form a valid contract?
A
- Offer
- Acceptance
- Consideration
7
Q
What constitutes an offer in contract law?
A
An offeror presents a deal and signals that acceptance will conclude the deal.
8
Q
Are advertisements considered offers?
A
No, they are generally considered invitations to offer.
9
Q
What is the mirror image rule?
A
Under common law, acceptance must match the exact terms of the offer.
10
Q
What happens if the offeree changes the terms of the offer in acceptance?
A
It operates as an effective rejection and counteroffer.
11
Q
Under the UCC, when is acceptance effectuated?
A
When a buyer signifies acceptance or fails to reject goods after inspection.
12
Q
What is consideration in contract law?
A
A bargained-for exchange and legal detriment where one performs in a manner not legally required.
13
Q
Is past consideration adequate consideration?
A
No, past consideration is not treated as adequate consideration.
14
Q
What is the statute of frauds (SOF)?
A
A requirement that certain contracts must be in writing to be enforceable.
15
Q
What types of contracts must be in writing according to the SOF?
A
- Marriage
- Sale of goods over $500
- Land sale contracts
- Suretyship contracts
- Executor contracts
- Contracts not to be performed within one year
16
Q
What are the requirements for a writing to satisfy the SOF?
A
- Signed by the party to be charged
- Reasonably identifies the subject matter
- Indicates a contract has been made
- States essential terms with reasonable certainty
17
Q
What is part performance in relation to SOF?
A
Partial performance evidenced by possession or payment of the purchase price.
18
Q
What is equitable estoppel?
A
A doctrine requiring a party to show a promise was made and reasonably relied upon to their detriment.
19
Q
What is judicial acknowledgment?
A
When a party admits to the agreement in pleadings or testimony.
20
Q
What constitutes a breach of contract?
A
When a party fails to perform as obligated under the express and implied conditions of the contract.
21
Q
What are the two types of breaches?
A
- Minor breach
- Material breach
22
Q
What is a minor breach?
A
A breach that does not excuse performance, allowing the non-breaching party to seek damages.
23
Q
What is a material breach?
A
Occurs when a party does not render substantial performance.
24
Q
What is anticipatory repudiation?
A
When a party unequivocally communicates that they are unable or unwilling to perform their obligations.
25
What can a party do if they have reasonable grounds for insecurity about the other party's performance?
Demand adequate assurances in writing.
26
What is the implied warranty of merchantability under the UCC?
Goods sold by a merchant must be fit for their ordinary purpose.
27
Can a merchant disclaim the implied warranty of merchantability?
Yes, but it must be done expressly and with conspicuous language.
28
What is a condition precedent?
A condition that must occur before a party's duty to perform arises.
29
What is the perfect tender rule?
A seller must deliver conforming goods; even the smallest non-conformity is a breach.
30
What are the seller's rights if they deliver non-conforming goods?
The seller has the right to cure if time for performance has not expired.
31
What is the frustration of purpose doctrine?
Discharges performance when the contract's purpose no longer exists due to an unforeseeable event.
32
What discharges performance due to impossibility?
When it is objectively impossible to perform due to death, destruction of subject matter, or illegality.
33
What is impracticability in contract law?
Occurs when an unanticipated event makes performance extremely difficult or expensive.
34
What is the parol evidence rule?
A rule that prevents the introduction of prior agreements that contradict a fully integrated written agreement.
35
What are the exceptions to the parol evidence rule?
* Correcting clerical errors
* Establishing a defense against formation
* Interpreting vague terms
* Supplementing a partially written agreement
36
What are the two types of mistakes that may render a contract void?
* Mutual mistake
* Unilateral mistake
37
What is mutual mistake?
When both parties are mistaken about a basic assumption material to the contract.
38
What is unilateral mistake?
A mistake made by one party that is unknown to the other party, generally not a defense unless the other party knew of the mistake.
39
What is capacity in contract law?
The ability of a party to enter into a contract; contracts entered by those without capacity are voidable.
40
Who generally lacks capacity?
* Minors under 18
* Individuals lacking mental capacity
41
What are necessity contracts?
Contracts for essential goods that generally bind minors, such as food, shelter, and clothing.
42
What are the six legal remedies for contract breaches?
* Expectation damages
* Reliance damages
* Consequential damages
* Incidental damages
* Restitution damages
* Punitive damages (in tort claims)
43
What are expectation damages?
Damages that aim to put the plaintiff in the position they would have been if the contract was fully performed.
44
What is the duty to mitigate in contract law?
The requirement for the plaintiff to make a reasonable effort to reduce their damages.
45
What are reliance damages?
Expenditures made by a party in reliance on the contract, aiming to place them in the position they would have been if the contract never existed.
46
What are consequential damages?
Damages that arise indirectly from the breach due to the plaintiff's special circumstances.
47
What are incidental damages?
Reasonable costs incurred as a result of the breach.
48
What are restitutionary damages?
Damages awarded when a benefit has been bestowed and it would unjustly enrich the defendant if they were not required to pay.
49
What is the legal remedy for a breach of a sale of land contract?
* Amount paid for the land
* Difference between FMV at breach and contract price
* Expenses incurred
* Consequential damages
* Interest
50
What remedies do buyers have under the UCC if the seller breaches?
* Cancellation of contract
* Refund of amounts paid
* Recover cover damages or market damages
* Recover incidental and consequential damages
51
What remedies do sellers have under the UCC if the buyer breaches?
* Withhold delivery of goods
* Cancel contract
* Recover cover damages
* Recover market damages
* Recover lost profits if volume seller
* Stop delivery of goods
* Replevy identifiable goods
52
What is a quasi-contract?
An implied contract created by law to prevent unjust enrichment of the defendant.
53
What are the three equitable remedies for contract breaches?
* Reformation
* Rescission
* Specific performance
54
What is the purpose of unjust enrichment in legal terms?
To prevent the unjust enrichment of the defendant
## Footnote
It is created when the plaintiff confers a benefit upon the defendant with the reasonable expectation of compensation.
55
What are the three equitable remedies for contract breaches?
* Reformation
* Rescission
* Specific Performance
56
What is a proper equitable remedy when a legal remedy is inadequate?
Specific Performance
57
What conditions must be met for specific performance to be awarded?
* There is a definite and certain contract
* There is an inadequate legal remedy
* Enforcement is feasible for the court
* There is mutuality
58
Under common law, what does the doctrine of mutuality require?
Both parties must have been able to request specific performance.
59
What modern interpretation exists regarding the doctrine of mutuality?
If one party can sufficiently assure performance, the requisite is met.
60
What defenses can a party raise to avoid enforcement of specific performance?
* Unclean hands
* Laches
61
What does reformation allow in contract law?
A contract to be changed to conform to the original parties’ intent.
62
When is reformation available?
If a valid contract exists but there was a misrepresentation or mutual mistake of material fact.
63
What is the effect of a valid equitable defense on contract formation?
Contract will not be formed.
64
What type of evidence is admissible to prove misrepresentation or mistake in contract law?
Parol evidence
65
What does rescission do to the original contract?
Treats the original contract as cancelled.
66
What is required for rescission to be available?
There was a problem with the formation.
67
Can a plaintiff sue for both damages and rescission at the same time?
Yes, but the election for remedies may bar rescission if damages are sought first.
68
What are the five legal remedies for tort actions?
* Compensatory damages
* Consequential damages
* Nominal damages
* Punitive damages
* Restitution damages
69
What is the purpose of compensatory damages?
To place the injured party in a position it would have been but for the injury.
70
What must be established to recover compensatory damages?
* Must be caused by the defendant (actual)
* Must be foreseeably (proximately) caused by the defendant
71
What are nominal damages?
When the plaintiff has not suffered any actual injury but still wants to establish his rights.
72
In what situation are nominal damages not available?
Where damages or actual injury is a requisite element to the cause of action.
73
What is the purpose of punitive damages?
To punish the defendant.
74
What conditions must be met for punitive damages to be awarded?
* Plaintiff was awarded damages
* Punitive damages are proportional to actual damages
* Defendant's conduct was more than mere negligence
75
What is restitution in tort law?
Awarded to prevent unjust enrichment.
76
When is restitution available?
When one party confers a benefit to another party.
77
How are damages awarded in restitution determined?
Based on the value of the benefit conferred.
78
What is the general measure of damages for conversion?
The fair market value of the property at the time of the conversion.
79
What is the general measure of damages for fraud?
The actual losses suffered, such as the difference between the actual value of what plaintiff gave versus what plaintiff received.
80
What damages are typically associated with trespass to chattels?
The actual damages suffered, which may include the costs of repair.
81
How is damage measured for trespass to land?
By the diminution in value of property or costs to repair property.
82
What is a temporary restraining order (TRO)?
An emergency remedy used to maintain the status quo pending the outcome of a hearing.
83
What conditions must be met for a TRO to be issued?
* Plaintiff would suffer immediate and irreparable harm
* Can be issued ex parte without notice to the adverse party
84
How long does a TRO generally last?
Expires after 14 days, unless extended for good cause.
85
What happens if a TRO is granted in California?
A preliminary injunction hearing will be set, which must occur no later than 15 days (or 22 days if good cause is present).
86
What is a preliminary injunction?
Maintains the status quo pending the outcome of an action to protect against irreparable harm.
87
What is required for a court to issue a preliminary injunction?
* Notice to the adverse party
* Moving party obtains a security such as a bond
88
What are the conditions for a court to issue a permanent injunction?
* Harm cannot be compensated by money damages
* It is feasible to enforce by the court
* There is a balancing of hardships to both parties
89
What is an equitable lien?
An available remedy if the defendant wrongfully acquired title to the property and would be unjustly enriched if allowed to keep it.
90
What is a constructive trust?
An equitable remedy used to prevent unjust enrichment resulting from wrongful conduct.
91
What must occur for a constructive trust to be established?
* Defendant wrongfully acquired title to property
* Would be unjustly enriched if kept
92
What defenses can a defendant assert against a plaintiff's request for remedy?
* Laches
* Unclean hands
* Duty to mitigate damages
93
What does the defense of laches entail?
Bars plaintiffs’ recovery if there is an unreasonable delay in bringing the action and the defendant is prejudiced by the delay.
94
What does the doctrine of unclean hands state?
Bars plaintiff’s recovery when the plaintiff is guilty of unethical conduct related to the subject of the lawsuit.
95
What is the duty to mitigate damages?
Plaintiff generally cannot recover damages that could have been avoided; reasonable steps must be taken to mitigate losses.
96
How does failure to mitigate affect total damages awarded?
The court will reduce the total damages by the amount that could have been avoided.
