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Contracts Flashcards

1
Q

what do you need to consider for a contracts question

A

A- assent
C- consideration
D - defenses
S - statute of frauds

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2
Q

what is an offer

A

objective manifestation of a willingness by offeror to enter int agreement that creates power of acceptance in offeree

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3
Q

intent - a statement is only an offer if

A

person could reasonably interpret it as such
expresses present intent to be legally bound

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4
Q

requirements for terms to be certain and definite

A

common law - all essential

UCC - quantity

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5
Q

how do you terminate an offer

A
  1. lapse of time - reasonable if none specified
  2. death/mental incapacity (not options)
  3. destruction / illegality
  4. revocation
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6
Q

when is revocation effective

A

when communicated

revocation sent by mail is effective when received

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7
Q

UCC firm offer rule

A

offer is irrevocable for reasonable time not more than 3 months

if offeror is a merchant and it is is writing

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8
Q

ways to make offer irrevocable

A

option k
UCC firm offer
promissory estoppel
partial performance

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9
Q

what if a seller accepts a contract via shipping the items but they are unconforming

A

acceptance + breach

unless seller notifies buyer that goods are an accommodation (counter offer) and then buyer can accept or reject

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10
Q

mailbox rule

A

only acceptance

acceptance is effective when sent

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11
Q

what does mailbox rule not apply to

A

options and other irrevocable offers

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12
Q

rule for additional or different terms for common law

A

mirror image - acceptance must mirror terms of offer

conditional acceptance is a counter offer

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13
Q

rules for additional or different terms in ucc

A

acceptance containing different terms is acceptance

one or both parties not merchants: treated as proposed additions that must be separately accepted

both merchants: battle of forms

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14
Q

how is battle of the forms treated for different terms in acceptnace

A

included in k unless one of these:
- materially alters k
- offer limits acceptance to the terms of offer
- offeror objects to new terms within reasonable time

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15
Q

what if both parties are merchants and the terms in the acceptance /offer are different and knock each other out

A

nullified and use UCC gap filling

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16
Q

consideration is

A

bargained for legal detriment to promisee

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17
Q

test for gift

A

whether offeree could reasonably believe intent of offeror was to induce action – if yes, consideration

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18
Q

pre existing duty rule for consideration

A

common law - no consideration unless promisor gives something new in addition to what is owed or varies the existing duty in some way

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19
Q

exception for third parties for pre existing duty rule

A

party’s promise to third party to perform an act the party is already obligated to perform for another is sufficient

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20
Q

modern trend for past consideration

A

enforce past promises under material benefit rule

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21
Q

modification of k under common law

A

must be supported by consideration. agreements to modify k are enforceable if

  1. recision of existing k and entering into new k
  2. unanticipated difficulties and modification is fair
  3. new obligations arise on both sides
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22
Q

modification of k under UCC

A

just needs to be good faith

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23
Q

accord and satisfaction

A

accord - agreement to accept a different performance from other party to satisfy the duty

satisfaction - performance of the accord will discharge both original k and accord k

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24
Q

when is promise not to assert a legal claim consideration

A

when done in good faith that the claim is valid

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25
promises that are binding without consideration
1. pay a debt barred by SOL 2. promissory estoppel 3. material benefit rule
26
defenses to formation where there is no meeting of the minds
mistake misunderstanding misrepresentation undue influence duress capacity
27
can mutual mistake void a k
no if reformation is available yes if - mistake existed when k formed - mistake relates to basic assumption - mistake has material impact - adversely affected party didn't assume risk
28
can unilateral mistake void a k
yes if mistaken party didn't void the risk and - mistake would make it unconscionable or - non mistaken party caused or knew of the mistake
29
misunderstanding is when they think they are agreeing to same terms but actually terms are different. rules for these scenarios
neither party knows - no k if material term one party knows - k formed based on unknowing parties understanding both parties know - no k unless parties intended same meaning all this is subjective
30
elements for fraudulent misrepresentation
-knowing or reckless false assertion of fact - with intent to mislead - misrepresentation induced assent to k - justifiable reliance by adversely affected party
31
effect of fraud in factum (execution)
prevents party from knowing essential terms so no K unless reasonable diligence would've revealed the true terms
32
effect of fraud in the inducement
tricked party into entering k k voidable by tricked party if she justifiably relied
33
effect of non fraudulent misrepresentation
renders k voidable by adversely affected party who justifiably relied on material misrepresentation and was induced to assent to k because of it
34
what is undue influence
unfair persuasion - look for unequal relationship and persuasion that impairs judgment of other if confidential relationship the dominant party must prove k was fair
35
what is duress
improper threat that deprives party of meaningful choice threats of lawsuit in bad faith or threats to breach k in violation of good faith and dealing
36
rules for capacity
minor - voidable by kid except for necessities mental - void if adjudicated, voidable if no guardianship - void except for necessities intoxication - voidable if unable to understand and other party knew
37
defense to enforcement - illegality
k unenforceable if consideration or performance is illegal void if contemplates illegal conduct duty to perform discharged if k becomes illegal after formation
38
defense of unconscionability
so unfair that no reasonable person would agree
39
requirement of quasi k where court will imply k to prevent unjust enrichment
plaintiff conferred measurable benefit on defendant plaintiff acted without gratuitous intent and unfair to let defendant retain benefit
40
kinds of warranties
express implied warrant of merchantability implied warranty of fitness for a particular purpose
41
what is express warranty
any promise affirmation description or sample that is part of basis of bargain unless just opinion
42
what is implied warranty of merchantability
implied whenever seller is merchant goods must be fit for ordinary purpose can be disclaimed verbally or conspicuous writing
43
what is implied warranty of fitness for particular purpose
implied whenever seller has any reason to know buyer has particular use for goods and is relying on seller's skill to choose can be disclaimed by conspicuous writing
44
when is impracticability available
performance became illegal subject matter of k is destroyed performing party dies or incapacitated (personal services) performance becomes impracticable
45
elements of impracticability
1. unforeseeable event 2. non occurrence of the event was basic assumption' 3. party seeking discharge not at fault
46
when does frustration of purpose occur
1. when unexpected event destroys purpose of entering into k even if not impossible 2. doesn't have to be unforeseeable, but so severe it's not within assumed risks
47
how to release party from existing duty in writing
CL: need consideration UCC: written waiver signed delivered by aggrieved party
48
destruction to identified goods
destruction: before risk passes to buyer, k is avoided, everyone discharged, no breach damaged: k avoided or buyer can choose to take at reduced price risk of loss has passed to buyer: k not avoided
49
when does right of intended beneficiary vest
when B 1. detrimentally relies on rights 2. manifests assent to k or 3. files lawsuit to enforce
50
writing that satisfies SOF
1. in writing 2. signed by party to be charged 3. contain essential elements
51
what does SOF apply to
M marriage S suretyship O one year U UCC R Real property
52
SOF is not required for UCC goods if
1. specially manufactured goods 2. part payment 3. receipt and acceptance 4. judicial admission or 5. both merchants - failure to object to memo within 10 days
53
integration for PER
total: parties can't introduce extrinsic evidence of prior understandings or negotiations partial: can introduce extrinsic supplemental evidence of terms as long as it doesn't contradict
54
rules for intent of parties to determine integration
CL: four corners, look only at doc Second Restatement: if extrinsic term of agreement would naturally be omitted, term can be introduced as long as it doesn't contradict UCC: assumes partial integration and allows almost any outside tersm
55
PER doesn't apply to
anything after defenses providing condition precedent interpreting ambiguity UCC: supplementing terms by evidence of trade usage, course of dealing
56
priority for trade usage type evidence in UCC for PER
express terms course of performance course of dealing trade usage
57
requirement for express condition and implied
express - must be complied with unless excused, no substantial performance implied - only need substantial performance
58
damages for substantial performance
k price minus amount to complete
59
what if you fail to substantially perform
can still recovery through restitution
60
substantial performance less likely to be found when
willful breach
61
perfect tender under UCC
- substantial performance insufficient (except for installment k or when parties agree) - buyer may inspect goods and upon acceptance has obligation to pay
62
divisible or installment k in CL
recovery limited to amount promised for segment performed can recover for breach of other segments
63
divisible or installment ks under UCC
perfect tender does not apply buyer can only reject if nonconformity substantially impairs value and can't be cured buyer may cancel k only if nonconforming tender substantially impairs value of entire k
64
what does every party have in any contract ever
implied duty of good faith and fair dealing
65
how do you waive a condition
words or conduct may be reinstated if waiving party communicates retraction of waiver and other party has not relied on it
66
what if a party chooses to continue with k after a condition is broken
they've waived that condition
67
breach under common law
material: nonbreaching party doesn't get substantial benefit of bargain, can withhold performance and pursue remedies minor: breaching party substantially performed, nonbreaching parties must perform but can seek remedies
68
breach under UCC
seller must strictly perform all obligations under k or be in breach material breach only applies to installment ks or if agreed
69
anticipatory repudiation under CL
promisor repudiates before time of performance is due. must be clear and unequivocal via words or acts
70
CL nonbreaching party's options for anticipatory repudiation
1. treat repudiation as breach 2. ignore and demand performance (but don't drive up costs) 3. if only thing left to do is payment, have to wait for date of performance before suing
71
anticipatory repudiation under UCC
unequivocal refusal of buyer/seller to perform or when reasonable grounds for insecurity arises and other party fails to provide adequate assurance within 30 days
72
damages for breach of k
1. expectation (benefit of bargain) 2. consequential damages (foreseeable) 3. incidental (trying to do deal with breachl) 4. liquidated (stipulated)
73
formula for expectation damages
Loss in value + other loss - cost avoid - loss avoided
74
rules for damages for defective performance
construction ks - cost to correct defect sale of goods - difference in value between goods as warranted and actually tendered real estate - failure to perform - difference between k and fmv real estate - late deliver - fair market rental value
75
economic waste for construction ks
occurs when cost to fix or complete is clearly more than any economic benefit gained as a result court can award damage equal to diminution in FMV instead but if willful breach -- fuck that guy, he gotta pay
76
UCC breach of warranty damages
difference between value of goods accepted and goods as warranted
77
foreseeability for consequential damages
unforeseeable - not recoverable unless breaching party had reason to know about the possibility foreseeable - natural and probable consequence, contemplated by parties at formation, or just foreseeable
78
elements for consequential damages
1. foreseeable 2. causation 3. reasonable certainty of calculating damages
79
restitution damages
restores benefit conferred on other party measured by reasonable value of getting that benefit from somewhere else or D's increase in wealth from getting the benefit
80
what are reliance damages
reasonable out of pocket expenses incurred by nonbreaching party
81
can you recover reliance and expectation
no
82
factors for ordering specific performance
- difficulty of proving damages - hardship - wishes and understanding of parties - practicality yes for real estate yes for rare goods
83
UCC remedies for buyer if seller fails to tender goods
1. cancel k 2. recover payments 3. damages (FMV - incidental + consequential) 4. cover 5. specific performance 6. replevin
84
UCC buyer right to inspect
buyer has right to accept or reject all or part of the goods and to inspect before making that decision
85
UCC seller right to cure
seller has right to cure defective tender if time of performance under K hasn't ended or seller had reasonable grounds to think buyer would accept despite the nonconformity
86
sellers right to reclaim goods from insolvent buyer
if seller makes demand within 10 days of buyer receiving
87
risk of loss for shipment k and destination k
shipment k: risk passes to buyer when seller gives goods to the carrier and makes k for them to deliver destination k: risk passes to buyer when good arrive
88
SOL on breach of a sales k or warranty
4 years after cause of action accrues
89
what if a merchant's firm offer is prepared by someone else
then the signer must also separately authenticate it himself
90

Bar II (16 decks)

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