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Constitution Law Bar Prep > Contracts and sales > Flashcards

Contracts and sales Flashcards

1
Q

how do you determine if a contract is for sales if the contract has goods and services?

A

determine which aspect is dominant

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2
Q

what are the elements of a contract

A

mutual assent: offer and acceptance
consideration: bargained for exchange OR substitute ( PE, good faith UCC, DR)
No defense: mutual mistake, lack of capacity, illegality, statute of frauds

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3
Q

the broader the comm….

A

the more likely the comm was a solicitation instead of offer

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4
Q

to constitute an offer

A

expression of a promise, undertaking, or commitment to enter contract
certain and definite terms
comm to offeree

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5
Q

what is req for definite sale of goods contract

A

quantity

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6
Q

what are some indicators of a vague contract term

A

reasonable, fair, appropriate

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7
Q

when an offeree gives a counter offer

A

the original offer is rejected and unenforceable, a new offer is proposed, the offeree becomes the offeror and vice versa

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8
Q

when an acceptance is made expressly conditional…

A

it is a rejection that reqs acceptance. if the parties perform the contract as originally stipulated the contract is implied through their conduct and the new terms are not apart of it

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9
Q

what happens when an option is rejected

A

does not terminate the offer, the offer stays open during the agreed upon option period

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10
Q

how can an offer be revoked impliedly

A
  1. offeree receives correct info of acts by offeror that would indicate to a reasonable person that offeror no longer wishes to offer
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11
Q

when is an offer irrevocable

A
  1. option contract
  2. firm offer under UCC (merchant, signed writing, writing assures offer held open)
  3. detrimental reliance
  4. beginning perfomrance under a true unilateral contract
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12
Q

what terminates an offer by operation of law

A
  1. death/insanity (no comm to other party req)
  2. destruction of proposed contact subject matter OR
  3. supervieinig illegality
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13
Q

when can the power to accept be assigned

A

when an option contract for consideratino

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14
Q

how to accept a bilateral contract

A
  1. a promise to perform

2. part performance

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15
Q

what is the common law rule for additional/different terms in an acceptance

A

rejection and counter offer

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16
Q

what is the UCC rule for additioanl/different terms

A

acceptance

additional terms (non merchant): not included in contract

additonal terms (merchant): in contract UNLESS: materially alter terms OR the contract expressly limits accpetance to terms OR offeror objected to new terms in reasonable time

different terms: either the test above or the knockout rule; conflicting terms knock each other out, gaps filled by UCC

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17
Q

mailbox rule

A

acceptance is effective at dispatch UNLESS
offer stipulates otherwise
option contract involved
offeree sends rejection then acceptance (whichever is first)
offeree send acceptance then rejection AND rejection arrives first AND offeror DR’s

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18
Q

consideration

A

bargained for exchange for

legal value

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19
Q

preexisting legal duty

A

no sufficient for consideration

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20
Q

modification of a contract

A

modern rule: only if the mod is due to unforseeable circumstances AND fair and equitable.

old rule: not unless new conisderation

UCC: CAN modify if modification is given in good faith

Modification: changing a contract AFTER performance begins

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21
Q

promissory estoppel

A

promisor reasonably expects to induce action AND action is induced

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22
Q

lack of capacity defenses

A

intoxication
minor
duress (econ duress: threat to seriously impact victim finances AND no means to prevent impact) undue influence (susceptiblity to influence, influence)
All are VOIDABLE, not void

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23
Q

misunderstnading for ambiguity

A

neither party aware: no contract
both aware: no contract
one aware: contract based on what ignorant party believed

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24
Q

mutual mistake

A

may be voidable to the adversly affected party if
mistake conserns a basic assumption of the contrract
mistke has a material effect on the exchange
party seeking avoidance did not assuem risk of mistake

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25
is mistake in value a defense for contract formation
no
26
unilateral mistake
no, unless nonmistaken party knew or had reason to know mistake made by other party
27
examples of unconciousnable contract provisions
adhesion, exculpatory clause for intentional acts, inconspicuous risk shifting provisions
28
court remedy for unconscionable contract provisions
no contract enforce without provision limit app of provision to reasonable amount
29
statute of frauds
``` marriage one year or more land sale (mortgage, easement, leases, fixtures) executory interests goods 500 or more surety of a debt ```
30
when is a contract removed from s of F
modified out of s of f land sale: part performance and oral contract services: full performance goods: specifically manu goods OR goods paid for or accepted
31
writing req for statute of fraud
not formal signing can be electronic, initials writing can be receipt a letter, written offer accepted orally
32
parol evidence rule
an express agreement in a writing that embodies the final expression of the bargain, the writing is an integration. any other writings prior to integration are inadmissible to vary the terms of the writing
33
how do you determine an integration
is writing final expression | is it partial or complete
34
what is outside the scope of the parol evidence rule
validity of a contract conditions precedent to effectiveness intepretation collateral agreements
35
what are the general rules of contract construction (theres alot)
``` contracts constured as a whole ordinary meaning courts favor and presume contract valid the parties course of dealing usage of trade parties course of performance ```
36
what are the UCC gap filler provisions
price: reasonable price determined at time of delivery place of delivery: sellers place of business time: reasonable time payment time: time and place the buyer receives the goods assortment: at buyers option
37
implied warranties under UCC
merchantability: only merchants who deal with good "fit for the ordinary purpose for which such good is used" title: any seller, title is good against infringement: merchant seller reg dealing in good, free of patent,copyright claims fitness to a particualr purpose:
38
can implied warratines be waived
yes, merchantability and fitness of purpose can be waived in disclaimer or "as is" general disclaimer
39
when does risk of loss shift for defective goods
when seller has cured the defect OR buyer accepts goods anyway
40
risk of loss for non-carrier cases
seller is merchant: risk of loss shifts when buyer takes physical possession seller is nonmerchant: when tender of delivery
41
risk of loss for carrier
shipment contract (default): shifts to buyer upon transfer of good to carrier. seller must make reasonable contract with carrier deliver goods to carrier notify buyer of shipment provide buyer with docs needed to take shipment destination (req FOB or express risk of loss): shifts to buyer when gets to destination
42
performance rules under UCC and common law
common law: substantial performance UCC: perfect tender
43
failure to meet a contract condition...
is not a breach; discharges nonbreaching party from liability of nonperformance
44
what are implied conditions
notice performance cooperation
45
what can the party to a contract do when a condition is not met
terminate laiblity OR | continue under contract (thereby waiving condition)
46
anticipatory repudiation
when a proimsor, prior to the time set for performance, indicates thy wont perform when the time comes
47
when does anticipatory repudiation excuse conditions
1. bilateral executory contract | 2. unequivocal
48
effect of anit repudi
treat as total and sue suspend and wait to sue until performance date treat contract as discharged ignore and urge performance (not waivor)
49
test for divisible contract
the perofnamce of each party is divided into two or more parts the number of parts due to each party is the same the performance of each part by one party is agreed on as the equivalent of the corresponding part from the other party
50
when has the duty to perform been discharged
1. performance 2. occurance of condition subsequent 3. illegality 4. recission 5. partial discharge by mod of contract 6. cancellation 7. release 8. substituted contract 9. accord and satisfaction 10. novation 11. impossiblity, impractiability frustration
51
accord and satisfaction
an agreement in whcih one party to an existgin contract agrees to accept some other different future performance. Then performance of the accord.
52
must an accord be supported by consideration
yes
53
breach of an accord agreement
by debtor: enforce original or accord | by creditor: raise accord as equitible D OR wait until damage and sue for breach of accord
54
novation
an agreement to sub new party and new contract to assume duties of a party to old contract. you need 1. valid contract 2. agreement of all parties 3. immediate extinguishment of original contract 4. valid new contract
55
what are the elements of frustration for discharge of contract
supervening events no reasoanbly foreseeable purpose of contract destroyed purpose of contract realized by both parties when contract made
56
what factors are used to determine materialiaty of breach
``` amount of benefit received adquacy of compensation extent of part performance hardship to breaching party negliegnece of breahing party lilihood breaching party will perform rest of contract ```
57
options of nonbreahcing party in material breach
terminate duty to counterperform | AND imediate right to remedy
58
when can a buyer revoke acceptance given after receipt of goods with perfect tender rule
accepted goods with reasoanble beleif the defect would be cured and it wasnt OR they accepted goods bc defect detection difficult
59
grounds for rejection in an installment contract under UCC
buyer may reject any installment that is nonconforming only if it substantially impairs the value of that installment and cannot be cured.
60
if nonconforming goods received by buyer in installment contract under UCC...
still must accept if | -seller says theyll fix AND defects can be cured
61
does a superveing illegality revoke an offer
yes, if offfer made before acceptance, then revokes offer
62
illusroy contract
when a party promises to do something that doesn't give value to the other party
63
does a warranty disclamer for good (merchantability and fitness for part use) work if after offer and acceptance
no

Constitution Law Bar Prep (16 decks)

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