Contracts Flashcards
(39 cards)
Some courts allow modification without consideration if
modification is “fair and equitable” in view of circumstances not anticipated when the K was made.
K can be voided based on duress when
the party’s assent is induced by improper threat.
Economic duress is (1) (2) elements
(1) the party threatens to commit a wrongful act that would seriously threaten the other contracting party’s property or finances and (ii) there are no adequate means available to prevent the threatened loss.
Under Article II, if the term of an offer assuring that the offer will be held open is on a form supplied by the offeree,
that term must be separately signed by the offeror (like by initialing the sentence) to be enforced as a firm offer.
What are goods under the UCC?
Goods are all things movable at the time they are identified to be goods to be sold under the contract.
What is a merchant?
A merchant is one who regularly deals in goods of the kind sold or who otherwise by his occupation holds himself out as having knowledge or skill peculiar to the goods involved.
What is an offer?
- An offer is an acceptance of willingness to enter into a bargain, made in a way that the other party could reasonably believe that he could conclude the bargain by accepting.
Thus an offer must show the offeror’s intent to enter into a bargain and must have definite terms.
- What is an acceptance?
- Must it be communicated?
- An acceptance is an assent to the terms of the offer.
- Generally, acceptance of an offer must be communicated to the offeror and must be unequivocal.
What is consideration?
- A contract requires the presence of consideration on both sides of the bargain.
- Consideration is a bargained-for exchange, and that which is bargained for must have legal value.
What is the Statute of Frauds?
Under the Statute of Frauds, certain agreements must be evidenced by a writing that is signed by the party to be charged to be enforceable.
What does the UCC require in contracts?
The UCC requires only a signed writing indicating that a contract has been made and specifying the quantity.
What is the signature requirement under the UCC?
- The signature requirement is liberally construed by the courts.
- It need not be handwritten; it can be printed or typed.
- Under the UCC any mark made with the intent to authenticate the writing is a signature, including a party’s initials or letterhead.
What is the merchant’s confirmatory memo?
- In contracts between merchants, if one party, within a reasonable time after an oral agreement is made, sends to the other party a written confirmation of the agreement that is sufficient under the SOF to bind the sender, it will also bind the recipient if: (1) he has reason to know of the confirmation’s contents and (2) he does not object to it in writing within 10 days of receipt.
When can part performance take a sale of goods K out of the SOF?
Part performance is sufficient to take a sale of goods contract out of the SOF when (1) the goods have been specially manufactured or (2) the goods have been either paid for or accepted.
What are expectation damages?
For breach of K, the injured party may be entitled to expectation damages. These damages are intended to put the injured party in the same position as if the contract had been performed.
What are consequential damages?
Consequential damages consist of losses beyond those covered by the standard measure that a RP would have foreseen would occur as a result of the breach.
When are damages measured by the differences in value?
- Often where the cost to restore is many times greater than the difference in value of the property in its unrestored condition, damages are measured by the differences in value.
- Courts are split on which measure to use because the value measure encourages breach.
If there’s a willful breach
In a case of willful breach, where only the completion of the K will enable the nonbreaching party to use the land for its intended purposes, the cost of completion may be considered the appropriate damage award.
What does it mean for a K to be divisible?
If a contract is divisible, a party who has performed one or more parts is entitled to collect the K price for those parts even if it breaches other parts.
What elements does a K need to be divisible? (3)
For a K to be divisible,
(1) the performance of each party must be divided into two or more parts under the contract
(2) the number of parts due from each party must be the same
(3) the performance of each part by one party is agreed on as the equivalent, of the corresponding part from the other party.
How speculative can damages be?
- To recover, damages must be certain and not speculative; ie they must be ascertainable with reasonable certainty.
- Traditionally courts would not allow recovery of lost profits from a business not yet started; they were considered too speculative.
- The modern trend, however, is to allow recovery if there is sufficient evidence to determine profits with reasonable certainty.
Contract damage awards must
Contract damage awards must take into account costs avoided bc of the breach.
Can you recover on avoidable damages?
- A nonbreaching party cannot recover avoidable damages.
- He must refrain from piling up losses after a breach.
- He should make reasonable efforts to cut down the losses after the breach, and if he does not, he will not be permitted to recover on those damages that might have been avoided.
In contracts not involving the sale of goods, the condition of complete performance may be excused if
In contracts not involving the sale of goods, the condition of complete performance may be excused if the party has rendered substantial performance.
