Contracts Flashcards
(155 cards)
1
Q
Applicable Law
A
UCC – Sale of Goods
CL – Everything else
2
Q
UCC
Goods
A
moveable, tangible things
3
Q
UCC
Merchant
A
One who deals in goods of the kind or holds himself out as having specialized knowledge/skills
4
Q
Mixed K?
A
Predominant Purpose Test
5
Q
Formation
A
Mutual Assent + Consideration
6
Q
Mutual Assent
A
Offer + Acceptance
7
Q
CL Offer
A
Manifestation of Intent to enter into the bargain (intent)
+
Definite and certain terms
+
communication to offeree
8
Q
UCC Offer
A
Inviting acceptance in any manner/medium reasonable in the circumstances
Quantity must be certain/capable of being certain
9
Q
Offers in Jest
A
NOT offers
10
Q
Prelim negotiations in K formation
A
Invite to offer
11
Q
Solicitation of an offer
A
Preliminary negotiation– invite to bargain
12
Q
Ads / K Formation
A
Invite to deal
exc: words of commitment + offeree can be id-ed with specificity
13
Q
Rewards/Auctions
A
Only offer if clear who can accept/win
14
Q
Unilateral K
A
Promise for Performance
15
Q
Bilateral K
A
Promise for Promise
16
Q
Quasi K
A
Implied in fact– restitution remedy for UE
17
Q
Duty of GF and FD
A
Implied in every K
18
Q
Definite and Certain Terms (QTIPS)
A
Quantity – stated or ascertainable
Time (if missing, reasonable)
ID parties
Price (UCC if missing, reasonable at time of delivery)
SM
19
Q
Void / Voidable/ Unenforcable
A
Void – never had legal effect
Voidable– one/both may elect to voic
Unenforceable – bc defense applies
20
Q
Termination of Offer
A
Rejection by Offeree
C/O (not just inquiring)
Revocation
Lapse of time
21
Q
Rejection Methods
A
- Express
- Counteroffer
- Conditional Acceptance (becomes new offer) (exc: cond that would be included anyway)
- Acceptance with additional terms
22
Q
Acceptance with additional terms
A
CL - MIR tf AT = C/O
UCC
merchant = AT become part of K unless exc applies
non merchant involved = terms govern + AT are mere proposals/excluded
23
Q
Revocation
A
Offeror may revoke her offer = terminates offeree’s power of acceptance
- Direct or Indirect
- Unambiguous words/conduct by offeror
- Offerree is aware of ^
24
Q
Revocation Effective
A
upon receipt
25
Revocation of Unilateral
Start of performance = irrevocable
26
Irrevocable Offers
Option K
UCC Firm OFfer
DR by Offeree
27
Option K
Promise to keep offer open
CL -- consideration
UCC -- no consideration
28
UCC Firm Offer
Merchant + signed + in writing + assures offer held open for time stated
3 mos max -- then becomes revocable
29
Acceptance
*Offeree's* (only) clear expression of assent to offer
within reasonable time
in response to offer
in manner required by offer (no method → reas)
30
UCC Acceptance by Shipment
M may accept by:
Promise to ship
Prompt shipping conforming goods
Prompt shipping nonconforming goods (acc and breach)
31
UCC AT Acceptance
Battle of the Forms
**One or more party non merchant = mere proposal** (op can agree to)
**Both merchants = auto part of K unless:**
Offer expressly limits acceptance to its terms
AT creates material alteration
Objection by offeror- reasonable time
32
Knock Out Rule
Maj rule
Conflicting terms knock each other out UOA
33
UCC Gap Fillers
Supply missing terms
**Price** = reas at time of delivery
**Delivery** = B picks up from S
**Time of shipment =** reas
**Time for payment** = upon receipt of goods
34
Additional Terms Minority Rules
Treat as diff terms
Fall out rule (offeror's terms control)
35
Detrimental Reliance
Temp irrevocable if:
offeree has made prep to perform/perform in part + reas detr rel on offer s perf in part
Unilateral - perf begun = temp irrev
Bilateral - Prep to perform may make irrev
36
Termination - Lapse of Time
If no time limit set = reasonable
If oral -- end of convo
37
Death/Incapacity
Either party = power to accept terminated automatically
exc: Option K
38
MBR
Offer = effective on receipt
Rejection / Revocation /CO effective on receipt
Acceptance= effective upon **dispactch**
39
MBR Exceptions
If offer stipulates not accepted until received → offer controls
Option K = receipt
40
MBR and Simultaneous Offer/Acceptance
FIRST sent wins
Acc first - acc effective on dispatch
Rej sent first – acc only effective if arrives before rej
41
Acceptance by Performance
UOA – partial perf (bi) and complete (uni)
42
Acceptance of Unilateral K by Performance
Failure to perform does not = breach bc no K formed
Irrevocable between start of performance and completion
43
Acceptance of Bilateral K by Performance
Part Perf = acceptance
44
Acceptance by Shipping NC Goods
Without acknowledgement = acceptance + breach
With Acknowledgement = “accommodation” = c/o
45
Promissory Estoppel
| (substitute for consideration)
Promisor reasonably expects reliance by promisee
Promisee acts/refrains from acting in DR
Injustice w/o enforcement
46
Consideration
Bargained for Exchange (mere peppercorn)
benefit to promisor + detriment to promisee
47
“BFE"
Promise must induce the detriment and vice versa
48
Pre-Existing Duty Rule
Promise to perform a PED is NOT valid consideration
Exc: if existing duty owed to TP, will not violate PED Rule
49
Invalid Consideration
Illusory promises
promises of gifts/conditional gifts
50
Categorically Inadequate Consideration
Gifts
Sham/Nominal
Past Consideration unless exception
51
Past Consideration Exceptions
New promise to past debt now barred by SoL
New promise to pay past benefits previously received (emergency)
52
Illusory Promise
not supported by consideration (not promising to do anything)
53
Output K
B agrees to buy all of S's output - specified time
54
Req K
Parties agree-- S as exclusive source for B's needs – specified time
55
Defenses to Formation
IM MIDSUM
Incapacity
SoF
Illegality
Miresp/Fraud
Duress
Misunderstanding
Mistake
56
Incapacity
Infants/mentally incompetent
intoxicated (if OP knows)
57
Incapacity + Right to Disafrrim
Person who lacked capacity can void K
58
Infancy Incapacity Exceptions
K involving a minor may be enforced if
Implied Ratification – gain majority and retained benefit
For necessities
59
Minor Implied Ratificaion
Agreement entered when under 18
Since gained capacity
Benefits retained
60
SoF
My Legs
Marriage
Year (1)
Land
Executor
Guarantor
Sale of goods +$500
61
SoF
Ks subject to require special proof of existence
Falls within SoF → Writing + Signed PTBC
62
SoF
UCC Exception
Signed writing not required where:
both Ms
Party asserting received signed writing memorializing terms + failed to respond within 10 days
63
SoF Performance as Satisfaction
- Service K – FULL only
- Sale of goods K – delivery and acceptance (unless custom then subst start toward perf sufficient)
- Real Estate – Part performance 2/3: Full/part payment; possession; improvements
64
SoF Marriage
Promise made in consideration of marriage
(ex: marry my son and I'll buy you a car)
65
SoF 1 Year
Service Ks incapable of being performed within 1 year
66
SoF Land
Transfer of property interest
Leases greater than 1 year
67
SoF
Executor Promise
Promises by executors/admin
to pay debts of the decedent's estate
68
SoF
Gaurantees
Promise to pay the debt of another (from your money)
69
SoF
Sale of Goods +$500
Exceptions where SoF will not apply:
Goods accepted or paid for
Admission in pleading/ct testimony
specially manufactured goods not suitable for sale to other
70
SoF Exceptions
Made in consideration of M --mutual promises
Part Performance
Pay debt of another but main purpose benefits payor
K cannot be performed in one year but already performed
Sale of Goods exceptions
71
SoF Writing Req
Made at time promise is made
CL - indication of K; essential terms; signed PTBC
UCC-- some signed writing specifying qty
72
Merchant's Confirmatory Memo
Exception to SoF
Must be signed by sender AND recipient
Both Ms
Know contents
Recipient does not reject within 1- days
73
Illegality
SM = K not enf
Illegal Purpose = only enf by one who did not know
(Based on law at time of K formation)
74
Misrepresentation
One party makes false stmt mat fact (need not be int'l)
justifiable and actual reliance by other
P suffers pecuniary loss
75
Fraud
Int'l misrep prior to signing
false rep mat fact
knowledge of falsity (scienter)
intent to induce reliance of other
Justifiably relied
(p must suffer pecuniary loss)
76
UI
K entered into under excessive pressure + someone susceptible to
(voidable)
77
Duress
w/f act/threat that overcomes party's free will
Physical - void
Nonphyiscal - voidable by threatened party
78
Unconscionability
Ct may refuse to enforce where K so unfavorable to one party that no reas person would have agreed
79
Mutual Mistake
Mistake by both parties
voidable by affected party if:
basic assumption of fact that existed at time of K formation + mat effect on deal + adv effected party did not assume the risk
80
Unilateral Mistake
Made by one party-- will not void K formation
Unless→ Mistaken party can void if can show : OP knew/sk of mistake
81
Misunderstanding
Ambiguity concerning k
Neither know-- no K formed unless intended same wrong meaning
One Knows-- K formed according to misunderstanding party's intent
Both know-- no k unless intended same wrong meaning
82
UCC Perfect Tender
Acceptance
B does not accept goods until received and has had chance to inspect = notify
B confirms → B indicates will keep despite nonconformity
B Silent → fails to reject
83
UCC Perfect Tender
Rejection
84
UCC Perfect Tender
Seller's performance must be perfect with respect to goods + manner of delivery
85
UCC Perfect Tender Rejection
Imperfect tender – B can:
Retain + sue for dmgs
Reject some/all and sue for dmgs
86
UCC PTR Rejection Req
If B rejects:
Notify S in reas time
hold rejected goods using reas care
Give seller reas time to arrange for removal
87
PTR and Installment Ks
Rejection – B may only IF
Defect substantially impairs installment
+
Defect cannot be cured
(installment ONLY not entire K)
88
PTR
S's option to Cure
S gives notice to B of intent to cure + time for performance has yet to expire
S had reas grounds to beleive NCG would be acceptable
89
PTR Acceptance Revocation
B cannot reject goods after acceptance unless discovers defect that subst impairs goods and either:
B accepted on reas belief defect would be cured and has not, or
B was excusably ignorant of defect
90
Substantial Performance
CL - one party substantially performed = OP obligated
91
Material Breach
One party's failure to perform substantially deprives the other of the benefit of the bargain
Excuses OPs performance
(no MB if performance not on time, but within reas time after due)
92
Conditions
Agreed upon limitations on performance K – performance is contingent on happening of condition
93
Condition Precedent
Must occur before performance is due
Non occurrence of excuses OP performance
94
Condition Subsequent
Occurs after performance begun + excuses further if not met
95
Insecurity
Party has reasonable grounds to believe OP will not perform
96
Demand for Adequate Assurances
Insecure party must: demand in writing
No response 30 days - K repudiated (treat as breach)
97
Minor Breach
Non breaching party may recover damages-- must still perform
98
Anticipatory Repudiation
Unambiguous act
prior to full performance
indicating non perforamnce
99
AR Withdrawal
AR party may w/d unless OP:
materially changed position in reliance on repudiation
cancelled entire K in response
indicated they consider the repudiation to be final
100
Non Repudiating Party Response to AR
Treat as total breach and sue
Suspend performance until due date and wait to sue
Treat as offer to rescind and discharge
Ignore and urge performance
101
Impossibliity
Objectively Impossible – Excuses Performance
102
Impracticability
Performance is only possible with extreme and unreasonable difficulty = performance excused
103
Frustration of Purpose
Unexpected event destroys one/both party's purpose for entering K
Unforeseen event not fault of frustrated party
non-occurrence of event was a basic assumption of the K
104
Recission
Discharges Duties under the K when parties agree to rescind
May be oral (unless subj to SoF)
Cannot if TPB vested
105
Unilateral Rescission
One party wants to-- granted if defense to K enforcement
106
Modification
Subsequent change to terms of K (parties agree)
CL: MA + consideration (never oral)
Modern – no consideration if fair/ due to circ unforeseen when k made
UCC- NO consideration needed, but MA + GF
107
Novation
Obligee (who receives performance) expressly agrees to accept performance of the delagatee (new TP)
All parties (incl tp ) agree to NEW K + new k extinguishes duties between original parties
108
Accord and Satisfaction
Accord = one party promises to render substitute perf + OP promises to accept
Accord = new performance (once perf- discharges og duty)
Consideration required
109
Accord and Satisfaction Consideration Rules
Consideration my be less if:
different than original BFE
paid to TP
resolves GF dispute concerning original K
110
TPBs
Benefits from K between OPs
Intended - promisor intended to benefit
Incidental- benefits but wasn't intended to
111
Intended TPB
Can enforce K; has rights under K
112
Incidental TPB
Cannot enforce K; has no rights under K
113
Rights of TPBs
Vest when:
Accepts benefits (learn and agree)
Sues to Enforce (learn and sue)
DR on K (learn and rely)
114
TPB Enforcment
TBP → sue promisor
Promisee → sue promisor (law AND equity)
(TPB can only sue promisee if TBP creditor beneficiary)
115
Assignment
Transfer of rts under K to TP
Assignor receives perf
Assignee is TP
Obligor will perform
116
Assignment Reqs
NO consideration
Assignor- only assign rights they have in the K
CL - cannot assign if substantially changes duties of obligor
117
Assignment Revocability
Consideration – irrevocable
Gratuitous-- revocable unless:
obligor performed / assignee received written claim/tangible object of rt to collect / DR by assignee
118
Assignee Right to Sue
Obligor - for non performance
Assignor - for w/f revocation
119
Delegation
Delegator assigns duties she owes obligee to TP (delegatee)
Delegator remains liable
nondelegable - PJ/skill; mat changes expectancy; special trust; K provision prohibts
120
Expectation Damages
Standard measure-- in place would have been if K performed
121
Reliance
Expectation too speculative
Put P in position if K never made
122
Consequential
Dmgs f/s at time of breach + when formed, d had reason to know P would suffer special dmgs
UCC-- only B can recover
123
Incidental
Expenses reasonably incurred by B or S as direct result of breach (cover; storing goods; inspecting; reselling)
124
Liquidated
Amt stipulated in K
Allowedable where dmgs = diff to calculate + reas approx (not punitive)
125
Nominal
P's rights violated; no financial loss
126
Punitive
NEVER for K
127
Duty to Mitigate
P cannot recover for reasonably avoidable dmgs
128
Equitable Remedies
Reformation – rewrite K to accurately reflect parties' intent
Rescission-- no mtg of the minds; undo K
Grounds: Fraud, misrep, duress mistake
Defenses: Laches and UH
129
Quasi K
QM
Implied K to prevent injustice
value of benefit incurred
130
Replevin
Return of PP
131
Ejectment
Return of RP
132
Specific Performance
Valid k + conditions satisfied + inadequate legal remedy + mutuality of performance + feasibility of enforcement + no defenses
(ChaCha Is Fairly Difficult)
133
Laches
Unreasonable delay that is prejudicial to D
134
UH
P engaged in unfair dealing
135
Dmgs
S breach/ B has goods
K price minus Cover price (if B covered OR
K price minus mkt price (time B learned of breach)
(can also get incidental + conseq)
136
Dmgs
S breach/ B has goods
Std = difference between K price and goods value as tendered
137
Dmgs
B breach/ S has goods
If S resells → K price minus resale price
If S did not resell → K price minus mkt price
138
Dmgs
B breach, B has goods
Full K price
139
LV Seller
Can recover if:
enough supply to make both sales
would have made both sales
would have made profit on both
(+incidental but not consequential)
140
Conversion
FMV at the time of conversion
141
Parol Evidence Rule
Bars evidence of negotiations and agreements before K becomes integrated
exc: K partially integrated or AT would ordinarily be in sep agreement
142
PER Partially Integrated
Intended to be final expression of agreement but not intended to include all details
NO EE to contradict term; EE to supplement term
143
PER Fully Integrated
Intended to be final agreement and intended to include all terms
No EE to contradict OR supplement term
144
PER Exceptions
K formation/enforcement duties
CPs to Ks effectiveness
Ambiguous terms
145
PER and UCC Ambiguous Terms
Course of Performance (these parties)
Course of Dealing (general parties)
Usage of Trade (industry)
146
Express Warranty
UCC – implied – can be disclaimed
Promise about quality or feature of item
Breached – if falls short
147
IWM
Fit for ordinary purpose
148
Implied Warranty F for PP
S warrants goods are fit for Bs purpose
B has particular purpose
S knows
B relies on S
149
Disclaiming Warranties
Limits liability
Remedy – limits recovery upon breach
150
Damages to Warranty Breach
Difference between current value and value as warranted by S
151
UCC Risk of Loss
Shipment by Carrier
Shipment K → seller obligated to ship but RoL passes once delivered to carrier
Destination K → seller obligated to ensure goods reach B; RoL to B when B takes
152
USS Risk of Loss
NonCarrier Delivery
Merchant - RoL to B - physical possession
NonM Seller- RoL to B - upon tender of delivery
153
UCC Risk of Loss
Goods Destroyed before RoL passes
K avoided/no fault
154
FOB location
Seller has risk/expense to get goods to named location
B has RoL once at location
155
Construction K and Natural Forces
Land destroyed during construction – contractor responsible under original K + no QR work work completed
Residence completed → RoL shifts to owner
