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Florida Subjects w/ Distinctions > Contracts > Flashcards

Contracts Flashcards

1
Q

[CL] Pre-existing Duty re: Modification:

Exceptions?

A
  • Parties agree to performance different than required by original K
  • Unforeseen Circumstances: performance rendered substantially more burdensome than reasonably anticipated** **by the parties when they entered K
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2
Q

Risk of loss:

Merchant? Non-merchant?

Breach?

A
  • Merchant seller: risk passes to buyer when he receives[physical possession]
  • Non-merchant: upon tender of delivery
  • Effects of Breach:
    • Seller breaches: risk remains with him
    • Buyer breaches before risk passes–seller may-to extent of any deficiency in his insurance–treat risk of loss as resting on the buyer for commercially reasonable time
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3
Q

[Common Law] Acceptance?

A

Must:

  1. Mirror offer &
  2. Communicate to offeror

*Offer silent re: method communication? reasonable

  • same means that offeror used,
  • means ordinary in the trade, OR
  • means equivalent in expeditiousness & equivalence
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4
Q

Accord & Satisfaction?

A
  • A: K where oblige promises to accept substituted performance in satisfaction of obligor’s existing duty.
    • Requires consideration SIGNIFICANTLY DIFFERENT from that required in original K. [Creditors allowed to accept partial payment as an A&S, if GF dispute as to amount owed.]
    • A alone will not discharge the original duty, but suspend it until S is completed.
  • S: performance of accord that will discharge original debt.·
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5
Q

[Statute of Frauds]

[UCC]

Partial Performance?

re: Divisible Goods?

Indivisible?

A

K enforceable re: goods

  • “paid for & accepted” or “received & accepted.”
  • actions by both parties indicate K existence
  • Divisible goods: PP secures enforcement quantity ALREADY
    • Paid for by buyer OR
    • Delivered by seller
  • Indivisible: enforces entire K
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6
Q

Ks governed by the Statute of Frauds?

A

M. SOUR:

  1. Consideration of Marriage
  2. Suretyship/Guarantee • Exceptions: (1) creditor discharged original debt on faith of guarentee by 3rd party OR (2) main purpose of guarontor’s promise is to protect own economic interest–not debtor’s interest–then not w/in SoF
  3. Longer than One Year [from creation of K to performance; if at all possible CAN end w/in a year, than iSoF (i.e., excludes lifetime employment K b/c can die w/in 1 year)]
  4. UCC- Sale of Goods over $500 [doesn’t have to be $ can be goods worth over $500]
  5. REAL PROPERTY - Sale of Interest in Land [future sale/lease not current] • Real estate brokerage agreements: service Ks not governed by SoF
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7
Q

Misrepresentation: Fraudulent Nondisclosure?

A

∆’s silence where there is a duty to disclose

  1. nondisclosure was MATERIAL
  2. REASONABLE RELIANCE on nondisclosure&
  3. Following circumstances:

i) RELATIONSHIP of TRUST & CONFIDENCE ii) made an assertion that was true but rendered untrue by intervening events
iii) if GF would require that party disclose info

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8
Q

Quantum Meruit?

A

Right to reasonable value of benefits

conferred

  • Means of enforcing both implied-in-fact & implied-in-law contractual obligation
  • measure of damages for services performed w/o a binding or enforceable contract
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9
Q

Battle of the Forms?

A

“DEFINITE & SEASONABLE EXPRESSION OF ACCEPTANCE will operate as an acceptance EVEN THOUGH it states ADDITIONAL or DIFFERENT TERMS”

  • Exception: Conditional Acceptance [Acceptance expressly made CONDITIONAL on ASSENT to ADD’L or DIFFERENT TERMS]
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10
Q

Impossibility Exceptions?

A
  • parties allocated for risk of contingency & provided remedial measures in event of occurrence
  • performance rendered ONLY TEMPORARILY IMPOSSIBLE, then will typically only suspend obligations of parties until impossibility ended
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11
Q

Statute of frauds:

time of writing?

A

Does not need to be written

at time promise is made

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12
Q

[UCC]

Warranty of fitness for particular purpose:

Modification/exclusion REQUIRES?

A

CONSPICUOUS WRITING

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13
Q

Incapacity:

MINOR:

EXCEPTIONS?

A

Necessaries: such as food, clothing, shelter, & medical [autos/educ. depends] are VOIDABLE;

Merchant’s relief is quasi-contractual only;

May ONLY receive reasonable value NOT K price.

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14
Q

[UCC]

Express Warranties

A
  1. Affirmation fact/promise: Good will do what I said
  2. Description goods: Good resembles description
  3. Sample/model: Rest of goods like sample
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15
Q

[Common Law]

Conditional acceptance?

A

counter-offer

(Look for “if,” “On the condition that,” “but,” etc.)

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16
Q

[UCC]

Warranty of fitness for particular purpose: Modification/exclusion requirement is not need when?

A

Inconspicuous writing not needed if:

  1. buyer fully examined goods or refused to do so, b/c warranty waived if defect would have been apparent from examination
  2. Course of performance, usage or trade indicate warranty mod/ex
  3. K expressions like “as is” or “with all faults” that make plain there is no warranty
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17
Q

[UCC]

Implied Warranties

A

Title against infringement

Merchantability

Fitness for Particular Purpose

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18
Q

An individual who is the subject of a court-ordered guardianship over that individual’s property lacks the capacity to _______.

A

enter into a K.

  • Consequently, any contract purportedly entered into by such an individual is void. (Note: If item is a necessity, may be able to recover reasonable value in restitution under a quasi-contract action, but cannot enforce original K of sale.)
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19
Q

What happens when Transaction involves a “Shrink-Wrap” K?

A

[UCC]

  • (a) “Shrink wrap” K: Ks contained w/in already purchased items
  • Boilerplate terms mere proposal for K, follow rules governing transactions not “b/w merchants” OR retention & use constitutes acceptance of terms
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20
Q

Invitation to

deal/receive offers

A

Preliminary communication

inviting others to produce an offer

that still reserves a final round of approval

with speaker

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21
Q

[SoF][CL]

[Signing requirement]

“Tacking Together” Multiple Docs

A

All docs must be signed OR

signed docs incorporate unsigned docs

Not incorporated: EXCEPTION:

  • a) @ least 1 signed writing unambiguously establishing contractual relationship b/w parties
  • b) signed & unsigned docs clearly refer to same subject matter
  • c) clear & convincing evid of acquiescence to unsigned docs by party against whom enforcement sought
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22
Q

[UCC]

Warranty of merchantability? Modification?

A

fit for the ordinary purposes for which such goods are used

may be modified/excluded,

doesn’t need to be in writing

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23
Q

Risk of loss:

Bailee

A

If held by bailee risk passes to buyer when

  • title passes to buyer;
  • bailee acknowledges buyer’s right to possession; OR
  • bailee receives title & has time to present to bailee
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24
Q

Delegable Duties–exclusions?

A
  1. Personal service cases
  2. When K prohibits delegation.

(a) CL: Attempt to delegate is a breach.
(b) UCC: Not an immediate breach, but it is reasonable grounds for insecurity allowing for a demand of assurances

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25
Q

UCC:

Substantial Performance

w/ regard to an installment K?

A

UCC requires perfect tender of goods, and substantial performance will not suffice. However, UCC does permit substantial performance with regard to an installment K.

  • When a nonconforming tender OR tender of nonconforming goods under one segment of an installment K, buyer may cancel K ONLY if nonconformity SUBSTANTIALLY IMPAIRS value of entire K to buyer.
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26
Q

[SoF][CL]

Writing Requirement?

Multiple docs?

A
  1. I.D. parties
  2. nature & subject matter of K
  3. essential terms of unperformed promises in agreement

Real prop Ks: Often require address & others more accurate description w/ monuments, meets & bound, etc.

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27
Q

Express vs. Implied Conditions?

A

Express: parties expressly include in provisions of K

Implied: address order of performance & rights upon breach when not done so expressly. Fairly inferred from circumstances.

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28
Q

A firm offer made by the offeror in an _______

is irrevocable for the stated time period,

where such period is _______,

provided that the offeror is a merchant.

A

authenticated writing

90 days or less

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29
Q

[UCC]

Imperfect Tender:

Rejecting goods?

A

Buyer MUST:

  1. exercise right of rejection w/in reasonable time after delivery &
  2. notify seller of rejection w/in reasonable period

Once rejected:

  • Buyer MAY: bring action for damages for imperfect tender
  • Buyer MUST: use reasonable care in holding goods for reasonable time until seller can remove them
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30
Q

Promissory vs. Pure Conditions?

A
  • Promissory: K performance conditioned on the occurrence of PROMISED PERFORMANCE by the other party
  • Pure: K performance conditioned on the occurrence of event BEYOND CONTROL of either party
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31
Q

Anticipatory Repudiation:

Failure to provide reasonable assurances constitutes?

Aggrieved party’s rights?

A

Failure to provide clear & unequivocal (Florida: distinct, unequivocal, & absolute) assurances constitutes an anticipatory repudiation.

Aggrieved can:

  1. Cancel K
  2. Bring an action for damages or specific performance
  3. Ignore repudiation, but cannot run up damages
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32
Q

Implied-in-fact K?

A

Consensual agreement that fails to express agreement of parties in its entirety

[Mechanic fixes car w/o agreeing to price]

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33
Q

Annuity

A

K requiring payment of a fixed amount periodically for duration of a person’s life

  • Purchaser assumes risk that person on whose life annuity is based will die before price paid for annuity is recouped, and issuer of K assumes risk that that person will live beyond recoupment date. This assumption of the risk is inherent in the nature of the annuity contract.
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34
Q

Limiting remedies, typically does not constitute a material alteration of a K. The statutory limitations period can be shortened by the parties to as short as_________.

A

One year

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35
Q

Excused Performance: Mistake?

Types?

A

party makes faulty assumption about fact present at K creation that affects materiality

Unilateral vs. Mutual

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36
Q

Defense:

Incapacity:

Mental Incompetence:

LEGAL CONSEQUENCES?

A
  • Adjudication of mental incompetence: VOID
  • No adjudication of incompetence: VOIDable
  • If voided: MUST make other party whole by paying reasonable value for goods received
  • Responsible for damages, unless, bad faith on other party then get goods “as is”
  • Possibility of Ratification if becomes competent
  • Incapacity defenses are available under both common law & UCC
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37
Q

Anticipatory Repudiation:

INSECURE PARTY’S RIGHTS?

A

Right to Suspend Performance, if:

  1. Goods not yet received
  2. Party doesn’t respond under a reasonable time, [UCC caps at 30 days]
  3. Other party responds OR w/ response that doesn’t provide clear & unequivocal assurances (FL: clear, unequivocal & distinct). Reasonableness of response: i) circumstances ii) prior relationship iii) past dealings iv) nature of insecurity involved
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38
Q

Option:

No Time Period Listed

A

If no time period is provided for the option,

a reasonable term is implied.

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39
Q

Option?

Construction K exception(s)?

A

An irrevocable offer. Factors:

  1. Offer
  2. Promise to keep offer open &
  3. Enforcement mechanism [consideration received]
  • Special rule for construction Ks: Gen’l contractor uses particular subcontractor’s bid to formulate his own, an implied option K is created via promissory estoppel.
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40
Q

Incapacity–MINOR–RATIFICATION?

A

Minor may ratify K upon reaching age of majority [open manifestation of intent to be obligated]

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41
Q

[SoF] [UCC]

Signed Writing?

A
  1. writing: intentional reduction to tangible form
  2. signature: any symbol executed w/ intention to authenticate writing
  3. sufficient to indicate that a K for sale has been made b/w the parties
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42
Q

[UCC]

Warranty of fitness for particular purpose?

A

When

  1. seller at time of K-ing has reason to KNOW
    • (a) any particular purpose for which the goods are required &
    • (b) that buyer is relying on seller’s skill or judgment to select/furnish suitable goods,
  2. goods shall be fit for such purpose.
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43
Q

Employment K provides “permanent employment”?

“Lifetime employment”?

A

Permanent: Absent contrary intention, “at will,” b/c duration term in K is considered too vague.

Lifetime: courts split–“at will” or literally lifetime.

Employment agreements overcome default rule of employment-at-will via express terms of K, rules published by the employer (such as those in an employee handbook), or by implication (by usage or conduct).

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44
Q

[FLORIDA DISTINCTIONS]

Anticipatory Repudiation?

A

A refusal to perform that is

“distinct, unequivocal, and absolute” is

repudiation permitting the other party

to seek assurance of performance,

to seek damages, or to mitigate damages.

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45
Q

Defense:

Misrepresentation:

Remedies?

A
  1. Avoidance: defend against a breach of K claim
  2. Rescission & Reliance Damages: bring tort action to rescind K & collect damages for reliance on the misrepresentation, including consequential damages
  3. Victims of negligent & fraudulent misrepresentation may live w/ the K & sue for the benefit of the bargain [difference b/w received & expected]
  4. Punitive damages are available for fraudulent misrepresentation [intentional tort]
  5. Defenses applicable under CL & UCC.
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46
Q

Employment K doesn’t state duration?

A

Presumption of employment “at will”

(either party can terminate any time, w/o it being deemed a breach of K (unless against public policy, i.e. fired for whistle blowing)).

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47
Q

Among _______, additional terms contained in an acceptance is automatically included in a K unless the (1) _______, (2) _______, or (3) _______.

A

Merchants

  1. offer expressly limits acceptance to the terms of the offer,
  2. the offeror has already objected to the additional terms or does so within a reasonable time, or
  3. the term materially alters the original contract.
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48
Q

Where a party bestows benefits upon another in connection w/ an oral K, even if enforcement of that K is barred by SoF aggrieved party may recover via?

A
  • PROMISSORY ESTOPPEL address reliance
  • QUANTUM MERUIT for reasonable value of services rendered
  • RESTITUTION may be filed for value of benefits conferred
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49
Q

Bargained-for-Consideration?

A

Exchange of promises involving a legal detriment or benefit

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50
Q

Gratuitous Promise

vs.

Gratuitous Transfer?

A
  • Gratuitous Promise/executory gift unenforceable
  • Gratuitous Transfer/executed gift legally binding
    • ​How to “execute” a gift/gratuitous transfer:
      • A) INTEND TO GIVE YOU GIFT &
      • B) EFFECTUATE DELIVERY OR SYMBOLIC DELIVERY
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51
Q

[UCC]

K formation?

A
  1. Both parties intend to contract &
  2. there is a reasonably certain basis for giving a remedy.
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52
Q

[CL]

Specific Performance

A

Breaching party ordered to perform.

(1) Only available to aggrieved party when: money damages inadequate.
(2) Specific Performance generally available:
(a) unique objects or (b) real property
(3) Specific Performance Not Available for K for personal services.

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53
Q

Injunction

A

preventing someone from doing something

(Most common: Employment Ks)

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54
Q

An offeree ______ have knowledge of an offer in order to have the power to accept the offer.

A

MUST

*If an offeree does not become aware of the offer until after acting, then his acts do not constitute acceptance.*

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55
Q

[UCC]

Written Confirmation of a K: ADDITIONAL vs. DIFFERENT terms?

A

Transactions b/w merchants: distinguish add’l & diff.

ADDITIONAL: automatically enter K UNLESS:

  1. materially alters K
  2. receiving party objects w/in reasonable time
  3. Offer expressly limits acceptance to terms stated herein

DIFFERENT: mere proposals for addition to K; omit both

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56
Q

Illusory Promises?

A

Promise to perform that

leaves performance up to

the discretion of promising party

[doesn’t constitute consideration]

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57
Q

[UCC] Imperfect Tender: Buyer must accept non-conforming tender if it does _______ of this particular installment & seller gives _______?

A

not substantially impair value

adequate assurance he can cure

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58
Q

Unilateral K

A

Exchange of a promise that requests acceptance by an action.

Offeror cannot revoke offer once offeree begins performance—distinguish b/w beginning performance & mere preparations. Once performance begins, offeree will have a reasonable amount of time to complete performance but CANNOT be required to complete the performance.

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59
Q

Merchant

A

Both a person who regularly deals in the type of goods involved in the transaction, but also any business person when the transaction is of a commercial nature.

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60
Q

[3rd-Party Beneficiaries]

At what point does an intended beneficiary’s right to sue vest?

A
  1. Once beneficiary brings suit to enforce
  2. Beneficiary changes position on reasonable reliance on K
  3. Beneficiary manifests assent either by promisor or promisee’s request
  4. If rights have vested under express terms of K
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61
Q

[UCC]

Acceptance:

3 ways Seller can accept buyer’s offer to purchase goods for shipment?

A
  1. Rending promissory acceptance
  2. Ship conforming goods
  3. Shipping non-conforming goods [CREATES BINDING K & BREACH]
    • EXCEPTION: seller notifies buyer that goods sent as an “accommodation” to buyer then counter-offer not acceptance
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62
Q

Right of

Replevin?

A

an action enabling the return of personal property taken wrongfully or unlawfully

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63
Q

Where a party to a contract breaches the contract and the only remaining duty with respect to the contract is the payment of money in installments, this breach does not _________.

A

give the other party a claim to damages for total breach.

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64
Q

UCC:

Warranty of Merchantability:

If a buyer, before entering into a K,

has examined the goods as fully as the buyer desires,

or has refused to examine the goods,

there is no______________.

A

implied warranty with respect to defects that an examination would have revealed to the buyer

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65
Q

[FLORIDA DISTINCTIONS] Construction Contracts and Indemnification?

A

Construction K–involving work on real property–b/w a real property owner and someone associated with the construction work on the property,

that contains an indemnity provision MUST have a monetary limitation on the indemnification.

Monetary limitation MUST not be less than $1 million per occurrence, unless agreed by the parties.

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66
Q

Statute of Frauds: UCC:

A contract K ONLY covers?

A

K is only enforceable under SoF for the quantity mentioned

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67
Q

[UCC] Imperfect Tender: Non-conforming tender substantially impairs value of whole K?

A

BREACH OF WHOLE K

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68
Q

Constructive revocation?

A

i) action taken inconsistent w/ intention to enter proposed K, or
ii) learns of inconsistent action from reliable source (other than offeror)

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69
Q

Revival of offer

A

Terminated offer may be revived by Offeror. As with any open offer, the revived offer can be accepted by Offeree.

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70
Q

Reward?

Types?

A

offer naming price for service but not specifying an offeree:

(a) SELF-LIMITING REWARDS: only 1 person able to accept
(b) OPEN-FIELD REWARDS: may be performed by several parties

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71
Q

[UCC]

Pre-existing Duty re: Modification?

A

displaces common law preexisting duty rule • agreement modifying exiting K for sale of goods needs no consideration to be binding;

however, must meet UCC’s GOOD FAITH TEST (failure to met will make unenforceable) both for mods w/ & w/o consideration

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72
Q

Non-carrier cases: Destination K:

A

agreed to tender goods at a particular destination.

  1. deliver goods to particular destination, seller must, at destination, put & hold conforming goods at buyer’s disposition
  2. seller must also give buyer any notice of tender that’s reasonably necessary to obtain delivery.
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73
Q

Acceptance?

A

MANIFESTATION of

a willingness to enter into the agreement

by the offeree.

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74
Q

Excused Performance: Mutual Mistake?

A

Both parties have labored under a common faulty assumption regarding the present facts.

K VOIDable by disadvantaged party, if:

  1. fact about which parties were mistaken is essential
  2. both parties were mistaken &
  3. disadvantage party does not bear risk or mistake under agreement
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75
Q

[SoF] [UCC]

Merchant’s

Confirmation?

A

Merchants enter an oral agreement & 1 of them sends other a written confirmation of agreement. Factors:

  1. sufficient against sender [if sender signs & contains amount]
  2. in confirmation of K
  3. w/in reasonable time of oral agreement
  4. Recipient has “reason to know” of content • Exception: recipient objects w/in 10 days of receipt
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76
Q

Offer and acceptance and the intent of the parties re: the same are governed by an ________________.

A

objective standard/test

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77
Q

Expectation Damages

A

aims to put you where you would be if fully & properly performed

Limits on Full Recovery of Expectation Damages

  1. Cost cannot greatly exceeds market value of full & proper performance;
  2. Reasonably certain;
  3. Foreseeability, entitled to consequential damages foreseeable at time of K &
  4. Duty to mitigate damages, general is you cannot recover for losses you could have avoided without risk, burden or humiliation. You only have to make a reasonable attempt to avoid.
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78
Q

[UCC]

Provide examples of terms that typically are found to have materially altered an original K.

A
  • Warranty Disclaimer
  • Arbitration Clause
79
Q

[CL] [Option]

Consideration?

A

Offeree must generally give separate consideration for option to be enforceable. If option w/in existing K, no separate consideration is required.

80
Q

Non-carrier cases: shipment K:

A
  • not obligated to deliver at named destination
  • does not bear risk of loss while in transit
  • Put goods in possession of a carrier
  • make appropriate arrangements for them to be sent to buyer
  • provide buyer w/ any docs necessary to enable possession of goods
  • promptly notify buyer that goods have been shipped.

Failure to notify buyer grounds for rejectment.

81
Q

Legal ramifications of breach of an accord?

A

(1) Obligor: Obligee no longer bound under A, and may choose b/w enforcing original duty or duty under the A
(2) Obligee: Original duty not discharged, but obligor may seek specific performance of the A

82
Q

Counteroffer?

A

Both a rejection & a new offer.

Caveat—> Mere Inquiry of offerer’s willingness to negotiate and an option holder has the right to make counteroffers during the option period without terminating the original offer.

83
Q

Which UCC K types don’t require a specified quantity?

A

Output &

Requirements Ks

84
Q

Good faith purchaser of goods in the ordinary course of business from a merchant takes ________ to the goods entrusted to a merchant when the merchant deals in the same kind of goods.

A

good title to the goods

85
Q

Defense-Duress?

A

compelling another party to act by means of inappropriate conduct

  1. Threat: manifestation of intent to inflict harm on other person (words or conduct)
  2. Threat to purse criminal charges is always wrongful
  3. Threat to purse civil action only wrongful, if done in bad faith
  4. Economic duress
86
Q

[FLORIDA DISTINCTIONS] Statute of Frauds governs?

A

DHN:

  1. DEBT—K satisfying debt or obligation for less than full amount;
  2. HEALTH CARE—K to charge H.C. provider any guarantee/warranty re: results of any medical procedure performed by a licensed physician, chiropractor, podiatrist, or dentist; &
  3. NEWSPAPER SUBSCRIPTIONS—Subscriptions to newspapers other publications.

M. SOUR: 1. Marriage 2. Suretyship 3. One Year 4. UCC - $500+ 5. Real Property

87
Q

Auctions “w/o reserve”?

A

auctioneer making offer to sell to highest bidder

88
Q

_______ performance of service Ks does not satisfy Statute of Frauds.

A

PART

Exceptions: Land & Goods

89
Q

Advertisements?

A

Considered invitations to receive offers from the public, unless:

1) Associated with REWARD, or
2) Ad sufficiently specifies & limits subject matter & who may qualify as an offeree (e.g., “Used car for sale for $5,000. First come, first served”; 1st 100 customers, anyone in store by 9:00 am).

90
Q

CHARITABLE DONATION ONLY ENFORCEABLE IF EVIDENCED IN?

A

WRITING

some courts recognize application of this doctrine without explicit proof that the charity relied on the promise, in order to enforce such a promise; promise of a charitable donation is enforceable under the doctrine of promissory estoppel (i.e., detrimental reliance)

91
Q

Post-Employment Relief: Injunction

A

Enforcement of employment K provisions that prohibit post-employment competition (non-compete clause) against employer. 3 factors:

  1. Requires significant business justification, i.e. protecting info.
  2. Scope must be reasonable in duration and location.
  • i) Impact of info age on what counts as a reasonable geographical limitation: this is becoming broader
  • ii) Impact of info age on what counts as a reasonable duration: shorter and shorter.
  1. Express covenant, not likely to imply.

“Blue Pencil” Rule: If it is overbroad court might re-write rather than deny enforcement altogether

92
Q

[UCC]

Missing Terms:

Price, Time & Place of Delivery

A
  • Missing price: Reasonable price at time marked for delivery
  • Missing time (e.g., time/date of delivery) is: Reasonable time
  • Missing place of delivery: Seller’s place of business
93
Q

[FLORIDA DISTINCTIONS] Pre-Existing Duty Rule?

A

Florida follows Second Restatement exception: Exception to pre-existing legal duty rule:

If a 3rd party offers a promise contingent

upon performance of a contractual obligation

by a party. Under the exception,

3rd party’s promise is

sufficient consideration.

94
Q

When contractual obligations are delegated, the delegator is not ___________.

A

released from liability, and recovery can be had against the delegator if the delegatee does not perform.

95
Q

Process by which the need for specific performance is decided?

A

Courts–not juries–decide. Factors:

  1. whether the aggrieved party has “clean hands;” (IMPORTANT)
  2. whether the terms of the K are fair; (IMPORTANT)
  3. whether the terms of the K are sufficiently definite;
  4. whether performance by aggrieved party can be reasonably assured; &
  5. whether specific performance in the public interest.
96
Q

If a deadline is not provided to accept an offer,

than a reasonable time is used.

What are the reasonable time factors?

A
  1. SUBJECT-MATTER
  2. MARKET CONDITIONS [home vs. milk]
  3. DEGREE OF URGENCY used for communication [e-mails/text vs. letter]
97
Q

[SoF] [UCC]

In-Court Admission

A

Party against whom enforcement is sought “admits” in his pleading, testimony, or otherwise in court that a K for sale was made

K is only enforceable: against the AMOUNT of goods admitted

98
Q

Anticipatory

Repudiation?

A

reason for parties to anticipate breach prior to time of breach.

Failure to provide CLEAR, UNEQUIVOCAL & DISTINCT assurances constitutes an anticipatory repudiation.

Based on: reneging party’s statement, OR (2) a voluntary act of party making him unable to perform. If neither applies, may ask for a reasonable demand [(a) UCC: Must be WRITTEN (b) CL: Oral or written] for clear, distinct, & unequivocal assurances

99
Q

Detail assignments re: considerdation?

A

No consideration is required, but an assignment for consideration is irrevocable.

100
Q

[UCC] “Firm” Offer? Enforceable for?

A

Merchant can make firm offer (irrevocable offer) to either buy or sell goods w/o consideration, if:

  1. MERCHANT OFFEROR
  2. Writing signed by Offeror (merchant)
  3. Offer expressly states it will be held open

ONLY ENFORCEABLE FOR 90 DAYS

  • Exception: 1) signed written renewal OR 2) option
101
Q

Gratuitous promise?

A

Promisee has neither promised nor given anything in return to promisor; unenforceable for want/lack of consideration

102
Q

“Past/Moral Consideration”? Exceptions?

A

promise given in exchange

for something already given/performed

will NOT SATISFY bargain requirement

Exceptions:

  1. reobligating self for DEBT extinguished by statute of limitations [time not amt]; OR
  2. reobligating self for debt extinguished by bankruptcy, debts discharged by BANKRUPTCY, reobligates self to prior debt
103
Q

Defense-Unconscionability?

Types?

A

party uses inappropriate bargaining tactics to take unfair advantage of a vulnerable party.

It focuses on both the unfair process & unfair results. Types: Procedural & Substantive

104
Q

Output K?

A

Buyer agrees to purchase all seller’s output for a particular good

105
Q

Equitable Remedies Types

A

Specific Performance & Injunctions

106
Q

Auction?

Exception?

By default an auction is?

A

auctioneer is inviting offers & responsive bids are offers.

Exception: auctions “w/o reserve,” auctioneer making offer to sell to highest bidder

By default, an auction is “with reserve .”

107
Q

Assignment of Rights?

A

owner of right MUST

  1. manifest intention to assign, AND
  2. make “a present transfer”

Contrast with a promise to make a future transfer of a right you expect to come into existence at a later date: Not an assignment.

108
Q

[UCC]

Specific Performance

A

A) May be permitted if “unique” goods OR buyer has searched but is unable to cover the breach

B) Buyer has a right of replevin by which buyer can repossess goods identified in K, in 3 circumstances:

  1. After Buyer made reasonable opportunity to cover & can’t
  2. Cover is futile
  3. Seller shipped goods kept security interest & seller kept security interest.
109
Q

Offers & rejections effective upon?

A

Receipt, not dispatch

110
Q

Defense: Incapacity:

MINOR:

Power of avoidance (or Disaffirmance)?

A

Can create enforceable K voidable at option of minor.

  • Obligated to return goods upon avoidance
  • Not liable for damages caused to goods
  • If goods sold, must turn over proceeds earned
  • If perishable or non-returnable, then no further obligation
111
Q

[Offers] Destruction or illegality of subject matter

A

Offer terminated.

112
Q

Implied-in-law K?

A

[quasi-K/restitutionary obligation] Equitable imposition of a would-be K, which prevents unjust enrichment. (Emergency surgery on unconscious patient)

  1. Confers measurable BENEFIT on Def;
  2. Pl reasonably expected to get paid; &
  3. Unfair to let Def keep benefit w/o paying

look for an opportunity to decline or a good reason why there was no opportunity to decline

113
Q

Terms of the K must be?

A

CERTAIN & DEFINITE, or the contract fails for indefiniteness.

114
Q

Excused Performance: 4 types?

A

Mistake,

Impossibility,

Impracticability &

Frustration of Purpose

115
Q

[FLORIDA DISTINCTIONS] Punitive Damages

A

Punitive damages are

  1. only awarded in cases of intentional conduct or gross negligence &
  2. capped at either 3x compensatory damages or $500,000–whichever is higher.
116
Q

Assignment of Rights–exclusions?

A
  1. Materially alter right/risks/obligations of other party.
  2. Obligor has personal interest in rendering service.
  3. When it would goes against law or public policy
  4. Offer cannot be assigned; option can

Prohibited by the K: Power to assign still retained by parties & only consequence is that assignment operates as breach of K.

117
Q

Excused Performance: Impossibility? Types?

A

performance rendered impossible by events occurring after K formed

OBJECTIVE vs. SUBJECTIVE IMPOSSIBILITY

118
Q

Specially manufactured goods cannot be?

A

…suitable for sale to others in the ordinary course of seller’s business.

119
Q

Excused Performance: Impossibility:

OBJECTIVE vs. SUBJECTIVE IMPOSSIBILITY?

A

OBJECTIVE IMPOSSIBILITY occurs: when performance under K becomes literally impossible b/c of circumstances beyond parties’ control

SUBJECTIVE IMPOSSIBILITY occurs: performance under K becomes impossible b/c of some failure or fault on performing party. Not excused at this point.

120
Q

[FLORIDA DISTINCTIONS] Promise to pay a debt after statute of limitations has run to be enforceable, must satisfy ________.

A

Statute of Frauds (written & signed by party to be charged)

121
Q

[FLORIDA DISTINCTIONS] Construction Contracts and Indemnification: Indemnification claims do not include claims of, or damages from _________________.

A

Gross negligence, or willful, wanton

or intentional misconduct of the indemnitee

or employees, or for statutory violation or punitive damages

except when the statutory violation or punitive damages are caused by the indemnitor or its employees.

122
Q

Satisfying SoF w/ part-performance–land?

A

Unlike other service deals, part performance of a real estate K can satisfy SoF if any 2 of the following 3 elements are met:

  1. Possession
  2. Payment &
  3. Improvements
123
Q

Requirement K?

A

seller to supply buyer w/ all of buyer’s requirement for particular good •

In addition to GF req, UCC prohibits any unreasonably disproportionate demand or tender, if there was either:

  • stated estimate made b/w parties or
  • in absence of such, any comparable prior outputs/reqs
124
Q

Defense:

Substantive unconscionability?

A

K terms unreasonably unfavorable to aggrieved party

  1. Grossly excessive price
  2. Grossly disproportional consequences for a minor breach
  3. Provisions binding one party but not the other
  4. provisions are grossly unfair
125
Q

Contract?

A

Legally enforceable agreement, which requires:

  1. mutual assent (i.e., offer & acceptance) &
  2. consideration.
126
Q

Situations where parol-evidence rule does not apply to bar earlier evidence?

A
  • Subsequent Agreements – agreements entered into after execution of written doc.
  • Evidence relevant to a defense against K formation (duress, fraud, lack consideration, lack of written agreement, etc.)
  • Collateral Agreements – PE will not affect agreement b/w parties that are entirely distinct from written agreements of K at issue.
  • Evidence to interpret a sufficiently ambiguous term in the final agreement.
127
Q

When a party performs an unrequested service for another party that constitutes a material benefit, the person may be entitled to recover to the extent that the other person has been ____________.

A

unjustly enriched.

128
Q

Liquidated Damages Clause:

Penalty

A

provision to punish a breaching party to prevent them from breaching. You have a right to breach & pay damages.

Factors:

  1. intention of parties, benign or punishment.
  2. reasonableness of liquidated clause; anticipated damages; possible to forecast damages.
  3. breach vs. actual harm; is it reasonable comparable?
  4. *Burden of Proof: On party calling it a penalty. *if the court concludes the liquidated damages clause is a penalty: the aggrieved party, takes out the provision and we’re left w/ CL.
129
Q

Is the mailbox rule applicable if a rejection is sent first?

A

NO.

If a communication is sent rejecting the offer, and a later communication is sent accepting the contract, the mailbox rule does not apply, and the 1st one to be received by the offeror prevails.

130
Q

[FLORIDA DISTINCTIONS] Fraudulent Misrepresentation?

A

Relief for a fraudulent misrepresentation: i

(1) person make false statement concerning material fact,
(2) that person knows representation is false,
(3) representation made with intent of inducing another to act on it, &
(4) party acting in reliance on the representation was injured as a result.

Not exempted by the doctrine of caveat emptor from responsibility.

131
Q

[UCC]

Carrier cases

A

K where parties intend goods be moved by common carrier

132
Q

SUBSTITUTE K

A

2nd agreement that immediately discharges original K, such that remedy for breach is limited to terms of 2nd K.

*If less formal, more an accord;

more formal, more likely substitute K.*

133
Q

[FLORIDA DISTINCTIONS] A refusal to perform that is ______________ is repudiation permitting the other party to seek assurance of performance, to seek damages, or to mitigate damages.

A

“distinct,

unequivocal, &

absolute”

134
Q

Detrimental Reliance?

A

When offeree detrimentally relies on offeror’s promise, offer may become irrevocable; promissory estoppel

  1. PROMISE
  2. REASONABLE & FORESEEABLE RELIANCE
  3. ACTUAL RELIANCE
  4. INJUSTICE w/o ENFORCEMENT
135
Q

Mutual Rescission?

A

parties agree to discharge each other’s remaining duties of performance under an existing K.

Note: SoF will not prevent an oral agreement of rescission that discharges unperformed duties from being enforced unless rescission of a transfer of property is involved.

136
Q

Distinguish WANT/LACK/INSUFFICIENT, FAILURE, & INADEQUACY of consideration?

A
  • Want/Lack/Insufficient - promise lacks consideration
  • Failure - party has not performed in accordance w/ his promise
  • Inadequacy - paid muchless than item’s worth
    • courts don’t measure/weigh/fairness of exchange for purposes of measuring consideration doctrine, instead, they police through doctrine of unconsciounability
    • EXCEPTION: in context of claim of specific performance in terms of real estate
137
Q

Fraudulent misrepresentation need not be material, and may make K voidable at the option of adversely affected party. The K is no longer voidable, however, if, ___________________.

A

following a misrepresentation but before the deceived party has avoided K,

the facts are cured so as to be in accord with the facts that were previously misrepresented

138
Q

[FLORIDA DISTINCTIONS] An _______ does not fall within the Statute of Frauds as a suretyship provision.

A

indemnity contract

(i.e., a promise to reimburse for monetary loss)

139
Q

[Common Law]

How specific must an offer be?

A

All ESSENTIAL terms

must be covered in agreement.

Typically:

PARTIES, SUBJECT, PRICE, & QUANTITY.

140
Q

[UCC]

Imperfect Tender:

Accept the Goods?

A

Despite improper tender, acceptance occurs when buyer has reasonable opportunity to inspect goods & signifies acceptance by either:

  • stating goods conform to K
  • taking goods despite non-conformance
  • failing to make an effective rejection, or
  • taking action inconsistent w/ rejection [put goods on display]
141
Q

Partial intergration?

A

[Parol Evidence] Integration means that there is a writing and final writing, but some terms are not included.

142
Q

Liquidated Damages Clause

A

impose a set amount of damages in the event of a breach;

cannot be a penalty

143
Q

Defense:

Undue Influence: Remedies?

A

VOIDABLE at option of aggrieved party

  • Aggrieved party entitled to restitution of any benefits conferred on other party, but must return the value in excess of those benefits to other party.
  • Where vulnerable party suffers undue influence at hands of 3rd party rater than other party to K, aggrieved party has the power to avoid K at his or her option, unless:
    • I. Other gives value or relies materially on the transaction; &
    • II. Other party proceeding in GF w/o reason to know of undue influence.
144
Q

Preliminary Negotiations?

A

Inquiry as to offeror’s exact demands for acceptance

145
Q

Nondisclosure of a known fact is _______, if the party not disclosing the fact knows that disclosure would correct a mistake of the other party as to a basic assumption of the contract, and the failure to disclose would constitute lack of good faith and fair dealing.

A

tantamount to an assertion that the fact does not exist

146
Q

[UCC] Non-carrier cases

A

Ks where PARTIES DO NOT INTEND FOR GOODS TO BE MOVED BY COMMON CARRIER

  • Seller’s obligation to tender delivery & tender must be reasonable hour &
  • goods must be kept available for period reasonable necessary to enable buyer to take possession [Buyer must furnish facilities reasonably suited to receiving goods]
147
Q

Defense: Duress:

3rd Party Duress?

A

wrongful threat made by 3rd party,

rather than other party to K,

aggrieved party will still have a valid duress claim.

UNLESS other party to K:

  1. GF w/o reason to know of duress &
  2. gives value or relies materially on transaction.
148
Q

Non-Fradulent Misrepresentation?

A

either NEGLIGENT or INNOCENT

  1. made false assertions of an existing fact
  2. Material misrepresentation
  3. Reasonable reliance
  4. Depends on whether negligent or innocent

a) Negligent: would known assertion was false had he exercised reasonable care
b) Innocent: made assertion not in accord with existing fact

149
Q

Offer: Revocation?

A

Termination of offer; Offeror may revoke for any reason, if:

  1. Revoked before offer acceptance; &
  2. Effectively communicated

2 forms of revocation:

  • a) Direct revocation: through direct communication
  • b) Indirect revocation (Constructive revocation)
150
Q

Acceptance under UCC?

A

ANY manner & medium reasonable under circumstances

151
Q

Fradulent Misrepresentation?

A

1. ∆ made false assertions of existing fact, such as fraudulent concealment (active efforts to cover up the truth)

2. MATERIAL misrepresentation​

a) Objective Materiality: likely to induce a reasonable person
b) Subjective Materiality: likely to specifically induce aggrieved party

3. REASONABLE RELIANCE Duty to read: reliance on characterization insufficient, UNLESS ∆’s a merchant and aggrieved a customer OR ∆ induces aggrieved no to read writing by devious means

4. ∆’s state of mind

a) Scienter [lied or didn’t know the truth] &
b) Intent to mislead

152
Q

Undue Influence?

A

vulnerable but not incapacitated party who succumbs to untoward bargaining tactics & pressures from other party, where those pressures or tactics fall short of fraud or duress​

*exam tip: a fidcuary will likely be involved*

Unfair persuasion was used; (discussion at unusual/inappropriate time; insistent demands that transaction or business be finished immediately; use of multiple persuaders against the target of the persuasion; absence of 3rd party advisers to the target of the persuasion) &

Against a vulnerable party (​​mental infirmity due to age or illness, but falls short of mental incapacity; vulnerability due to recent trauma or even; vulnerable party is reliant on the other party b/c of some relationship of trust or confidence w/ the other party)

153
Q

Defense-PUBLIC POLICY?

A

K not enforceable b/c to do so would undermine or violate some important public policy

(1) subject matter of K Itself is specifically prohibited by law
(2) K formed for purpose of committing a crime/illegal
(3) K performance doesn’t constitute a crime, but would a tort
(4) K performance would violate values/freedoms designated by jurisdiction

Likely Contexts: (A) NON-COMPETE AGREEMENTS; (B) SALES OF GOODS FOR BRIBERY; (C) SALES OF GOODS INTENDED FOR UNLAWFUL USE; (D) LIABILITY LIMITATION PROVISIONS; & (E) UNLICENSED GOODS OR SERVICES.

154
Q

Parol Evidence Rule

A

Bars the introduction of

  1. Evidence of negotiations b/w parties
  2. Taking place prior to or contemporaneously w/ the execution of a completely integrated, written K

*EVIDENCE AFTER THE K’s COMPLETION ARE MODIFICATIONS,

NOT Parol Evidence ISSUE*

155
Q

STATUTE OF FRAUDS?

A

K unenforceable if not evidenced by signed writing by party against whom enforcement is sought; performance may also satisfy

156
Q

[UCC]

Legal consequence of a failed rejection?

A

Acceptance

157
Q

Statute of Frauds exemptions to Suretyship Ks?

A
  1. Indemnity contracts; &
  2. Contracts where the surety’s main reason for paying the debt is the surety’s own economic advantage
158
Q

Promissory Estoppel?

A

Detrimental Reliance; Promissee who reasonably relies to her detriment on a gratuitous promise may be able to enforce the promise.

  1. PROMISE;
  2. REASONABLE & FORESEEABLE RELIANCE;
  3. ACTUAL RELIANCE; &
  4. INJUSTICE W/O ENFORCEMENT
159
Q

Reliance Damages

A

Put in position you were in before K was made.

When can a party get reliance damages: Available as an alternative when expectation damages are not determined with certainty.

160
Q

LEGAL Consequences of Duress?

A
  • Ks under physical compulsion are VOID
  • Other Ks entered under other forms of duress are voidable at option of aggrieved party.

Aggrieved party:

  1. entitled to restitution of any benefits conferred under duress &
  2. required to return excess value of benefits to perpetrator
161
Q

Mailbox rule

A

Acceptance effective upon dispatch—if properly addressed, postage, in hands of carrier

*Even if lost in mail still binding on parties [requires proof of dispatch] *MB Rule not applicable: 1) if sent revocation sent 1st; & 2) options K

162
Q

Excused Performance: Unilateral Mistake?

A

single party operating under a faulty assumption [party knew or had reason to know of mistake] about one or more material facts as they exist at the time of contracting.

K void, unless:

  • based on clerical error [some jurisdictions] OR
  • easily ascertainable
163
Q

FREE ALONGSIDE

A

seller must deliver goods along side the vessel

164
Q

[SoF] [UCC]

Substantial reliance by Seller of Specially Manufactured Goods

A

SoF EXCEPTION: Factors:

1) goods specially manufactured for buyer;
2) goods NOT SUITABLE for sale to others in ordinary course of seller’s business;
3) seller substantially began manufacture/procure goods; &
4) seller’s actions occurred before receipt/notice buyer’s revocation.

If enforcement barred by UCC SoF, aggrieved party may have remedy via promissory estoppel

165
Q

Is 3rd-party beneficiary’s right to sue subject to any defenses promisor may have to enforceability of K?

A
  • 3rd-party beneficiary’s rights are entirely dependent on underlying K; thus, defenses had against original party are transfered.
  • Defenses that cannot be asserted: based on separate transactions.
166
Q

Quasi-Contract?

A

[implied-in-law/restitutionary obligation] Equitable imposition of a would-be K, which prevents unjust enrichment. (Emergency surgery on unconscious patient)

  1. Confers measurable on Def;
  2. Pl reasonably expected to get paid; &
  3. Unfair to let Def keep benefit w/o paying look for an opportunity to decline or a good reason why there was no opportunity to decline
167
Q

Revocation of an Offer Made to Multiple Offerees

A

Functional Equivalents Rule: communication of revocation in functionally equivalent manner [power of acceptance lost, even if unaware; if more effective means of revocation reasonably available–must be used]

168
Q

Defense-Misrepresentation? Types?

A

untrue statements or assertions that relate to existing facts at or before K formation [both an affirmative relief under tort or a defense]

  • Fraudulent Misrep
  • Fraudulent Nondisclosure
  • Non-Fraudulent Misrep
169
Q

Monetary Damages Types?

A

Expectation,

Reliance &

Restitutionary

170
Q

[UCC]

How specific must

an offer be?

A

UCC is more willing to PLUG IN THE GAPS to find a K, even if agreement leaves out some key terms.

Generally, only need to I.D.:

Parties,

Subject, &

Quantity

PRICE DOESN’T NEED TO BE STATED!

171
Q

Excused Performance: Frustration of Purpose

A

contingency occurs that dramatically reduces value of performance to

receiving party.

  • party’s principal purpose in entering K is frustrated
  • substantial frustration
  • non-occurrence of event precipitating frustration was a basic assumption of the K

FoP, as an excuse to performance of a contractual obligation, is available under both the Common Law & UCC.

172
Q

Mirror Image Rule

A

[CL] Acceptance must mirror terms of offer & any NON-CONFORMING acceptance is a counter-off

May allow creation if variation de minimis &

i) conclude variation was implicit in offer if
ii) bad faith on part of offeror to back out of K

“Last shot” rule: last communication governs/controls K

173
Q

[FLORIDA DISTINCTIONS] Adequecy of consideration?

A

Subjective value: Benefit to the promisor does not need to have an economic value. Regardless of the objective value, as long as promisor wants it, the giving of it will constitute adequate consideration.

[Difference in economic value b/w items exchanged is not grounds for finding that K didn’t exist due to inadequate consideration]

174
Q

Bilateral K

A

Exchange of promises, which is enough to render both enforceable.

An offer requiring a promise to accept can be accepted either with a return promise or by starting performance. Commencement of performance of a bilateral K operates as a promise to render complete performance.

175
Q

Defense:

Procedural Unconscionability

A

bargaining process producing K created an absence of meaningful choice for aggrieved party

  • Absence of bargaining power – party forced to accept proposed terms, such as Ks w/ “take it or leave it” clauses
  • Fine-print terms – K included complex or arcane terms hidden in the maze of fine print in a lengthy standard form K
  • Near-miss cases – party vulnerable to pressure of other party (language barriers or advanced age) but vulnerability falls short of mental incompetence/duress OR victim subjected to misleading/coercive sales tactics that fall short of actual fraud/duress
176
Q

Excused Performance: Impracticability

A

unforeseen difficulties have made performance prohibitively expensive or otherwise extremely burdensome

  1. caused by some unforeseen contingency
  2. was neither assumed nor allocated by parties, &
  3. increase in cost of performance would be far beyond what either party anticipated [increase in cost alone insufficient]

UCC- Rise/collapse of market is a business risk, sort of contingency that fixed-price Ks are expected to account for. UCC recognizes impracticability: where shortage of raw materials is caused by war, embargo, local crop failure or other unforeseen SHUTDOWNS OF MAJOR SOURCES OF SUPPLY.

177
Q

Acceptance by silence? [Exceptions to requirement to communicate an acceptance to the offeror]

A
  1. REWARD offers or contests
  2. Offers where offeror can view PERFORMANCE
  3. B/C of PREVIOUS DEALING, reasonable that offeree would notify offeror if he intends not to accept.
  4. Offeror (1) gave offeree reason to believe acceptance must come via silence, & (2) offeree intends to accept the offer by silence
  5. (1) Offeree takes benefit of offeror’s services; (2) w/ reasonable opportunity to reject; & (3) reason to know of offeror’s intention
178
Q

Complete intergration?

A

[Parol Evidence] A writing intended by parties to represent a final & an exhaustive account of their obligations

  • Judge–not jury–considers thoroughness & specificity of written instrument in connection w/ PE.
  • MERGER CLAUSE–reciting that writing ‘contains complete & entire agreement of parties’ is best indication of a complete K
179
Q

Failure of Condition Under the CL: Inexcusable Failed Condition:

DIVISIBILITY?

A

series of performances over a period of time

FACTORS:

  1. Performance can be apportioned into corresponding pairs of parties’ performances?
  2. Can each pair be properly regarded as agreed equivalents?

EXAM TIP: If the whole is merely the sum of its parts, it is divisible. If the whole is greater than the sum of the parts, it is not divisible.

180
Q

Restitution Damages

A

value of the benefits,

you confer on another party

  • Available at option of the aggrieved party,
  • No double recovery, you can either get restitution or expectation not both.
  • Restitution is only available in partial performance.
181
Q

Buyer obligation re: goods

A
  • Accept conforming goods
  • Tender payment in accordance w/ K
  • Inspect goods. (Buyer has right to inspect goods upon tender before making payment, even if accepted after tendering payment it does not constitute an acceptance, or negate buyer’s right for remedies)
182
Q

FREE ON BOARD [F.O.B.]

A
  • If delivery point is seller’s place of business: seller need only, at his expense & risk, put goods in possession of carrier [shipment K]
  • If delivery point is the buyer’s place of business or not seller’s place of business: seller must at his expense & risk, tender delivery of goods at destination location [destination K]
183
Q

Material Breach

vs.

Substantial Performance?

A
  • Material breach: treated like an express breach, discharge
    • Total MB: damages based on all injured party’s remaining rights to performance
    • Partial MB: damages based on part of injured party’s remaining rights to performance, i.e. a delay.
  • Substantial performance: “close enough” to completely performance that courts won’t allow discharged of obligation • However, aggrieved party may still sue for damages
184
Q

Restitutionary damages are permitted in cases where the nonbreaching party has __________ a below-market-price K. Consequently, a party may recover the __________ upon the developer as measured by the amount the the other party would pay to secure the __________.

A

partially performed;

benefit conferred;

same performance

185
Q

UCC governs?

A

“Sales of goods” [not just goods sold by merchants]

186
Q

Anticipatory Repudiation:

Common Law vs. Florida?

A

clear & unequivocal

vs.

distinct, unequivocal, and absolute

187
Q

Failure of Condition Under the CL?

A

discharge party’s obligation to perform; thus, as if no K was formed

188
Q

3rd-party beneficiary does not have the

right to sue until her rights __________.

A

VEST

  • Parties to K free to modify or rescind it by mutual consent & may modify or rescind 3rd-party beneficiary provision w/o beneficiary’s consent unless & until beneficiary’s rights under the K have vested. Unlike INTENDED beneficiaries, incidental beneficiaries: have no Standing to sue.
189
Q

Defense:

Incapacity:

Mental Incompetence?

A

Need not be insane, but must be incompetent at time of K formation. FACTORS:

  • Adjudicated incompetent & guardian appointed
  • No judicial declaration:
  • Cognitive defects: unable to reasonably understand nature & consequences of transaction [on drugs]
  • Volitional defects:
  1. person unable to act reasonably in relation to transaction; &
  2. other party knows of condition [manic depression when K-ing]
190
Q

Calculating lapse of time in offers?

A
  1. Date for offer termination: Midnight on that date
  2. Specified # of days for offer termination: Time starts to run from time offer received
191
Q

Pre-existing Duty?

A

cannot be deemed consideration

for a K

OR

modification of a K

192
Q

Offer?

A

MANIFESTATION

of a willingness to enter into an agreement

(by offeror)

that creates a power of acceptance

(in offeree).

193
Q

When Ks contain

services & goods?

A

1: K LANGUAGE

DETERMINE APPLICABLE LAW BY PREDOMINATE PURPOSE OF K

Florida Subjects w/ Distinctions (13 decks)

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