Contracts Flashcards Preview

NY Bar 2014 > Contracts > Flashcards

Flashcards in Contracts Deck (92)
Loading flashcards...
0

Applicable law?

Sale of goods: UCC Art 2

Lease of goods:
MBE: CL
*NY* UCC Art 2A

Other (real property etc): CL

1

Offer - define

Manifestation of intention to be bound.

2

Ad - offer?

Only if quantity specified.

3

No price stated - indefinite or offer?

Reasonable price applied EXC real property.

4

Quantity specified as "buyer's requirement"?

OK. Minor fluctuations OK, not surprising/major fluctuations.

5

Offer termination - 2 forms

Lapse - reasonable time or stated time

Revocation - direct when received by offeree, or indirect via conduct when offeree aware of conduct.

6

Irrevocability of offer - 4 types

Option
Firm offer
Foreseeable reliance on offer (eg. Subcontractor)
Performance of unilateral

8

Option - requirements?

Promise + payment
(No need for merchant)
MBE: Payment always required
*NY* Payment not required if signed writing

9

Firm offer - requirements?

Merchant + signed writing
Max period - 3 months (even if agreement states longer period)
(No consideration needed)
(Fallback position)
[Art.2]

10

Foreseeable reliance on offer

Eg. subcontractor's offer as basis of contractor's bid
(Rare because reliance is usually after acceptance)

11

Performance of unilateral contract

Only MBE - cannot revoke once performance has started (not incl "mere preparation"
*NY* - can revoke until performance is complete (=acceptance)

12

Rejection of offer - 3 types

Counteroffer (not incl mere bargaining)
Conditional acceptance (=counteroffer)
Acceptance varying offer

13

Acceptance varying offer - Cl/SoG?

CL: Mirror image rule

SoG: 3 conditions for acceptance:
1. Both merchants
2. No material change
3. No objection w/in reasonable time

14

Acceptance varying offer - when not applied to agr?

Change causes hardship/surprise to offeror.

15

Improper performance - result?

Simultaneous acceptance and breach.
EXC Sog - goods sent as accommodation (not acceptance yet)

16

Mailbox rule?

Acceptance - when mailed (even if rejected verbally later.
EXC:
- offer states otherwise
- irrevocable offer - acceptance when received
- if rejection mailed then acceptance mailed - race whichever arrives first

17

Defenses against formation - 8 types

Lack of capacity
Economic duress
Mis-rep / nondisclosure material fact
Ambiguity / misunderstanding
Mistake re material fact
No consideration
Public policy
Unconscionability

18

Lack of capacity - power to disaffirm/enforce

May disaffirm. (EXC: necessities to live - reasonable value).
May enforce.
Silence after capacity restored = implied affirmation

19

Economic duress

Rare.
Threat to breach existing contract if 2nd offer not accepted.
and
No reasonable alternative

20

Misrep

Material fact only.
Even honest.

21

Mistake re material fact - mutual/uni?

Mutual only!
EXC: Mistake re value.

Uni - no defense, EXC other party knew of mistake.

22

Consideration - past consideration defense?

MBE: No
*NY* Yes if signed writing and can be proven
(promise to pay for something already done)

23

Must consideration reflect value?

No.

24

Illusory promise?

"I will if I want..."
Unenforceable

25

Consideration for contract modification?

Art. 2: Not required if good faith reason exists.

CL: Required. EXC if 3rd party agrees to pay.

*NY* No consideration needed if signed writing

26

Agr to make partial payment and waive remainder

Due and undisputed:
MBE: Invalid.
*NY*: Valid if signed writing.
(reasoning: creditor waiving w/o consideration)

EXC: Time-barred (collection barred by state limits): written promise enforceable

27

Fallback when unenforceable due to lack of consideration?

Promissory estoppel (reliance)

28

Public policy defenses?

Non-compete (scope, need/uniqeness)
Exculpatory: For negligence OK, for gross negligence of intentional - invalid

29

Unconscionability - 2 types

Substantive - unfair
Procedural - eg. small print

30

Statute of frauds - 6 transactions requiring writing

Real property transfer of interest
Performance cannot be completed in 1y.
SoG $500 or more
LoG for $1000 or more (yearly) (Art.2A)
Suretyship (even when not needed for orig debt)
Contract modification (when "as modified" required)
When marriage is part of the transaction.