Contracts Basic Flashcards

Question

Promise to perform pre-existing legal duty as consideration?

Answer 1

No. Exceptions: - new / different consideration -promise to ratify an otherwise voidable obligation -preexisting duty owed to 3d party, not promisor -there is an honest dispute as to the duty -unforseen circumstances (like would give rise to impracticability); or modern view: modification is fair and equitable in view of unanticipated circumstances

Answer 2

CL: new consideration required modern view: modification w/o consideration ok if (1) fair and equitable and (2) due to unanticipated circumstances UCC: can modify w/ good faith agreement of new / different terms (no consideration required)

Answer 3

Need consideration on both sides of the contact, therefore no consideration if there's an illusory promise (where on party is essentially not bound)

Answer 4

Infants Mental Capacity Intoxication Duress / undue influence

Answer 5

1. Misunderstanding (ambiguous K language) If both /neither party knew of ambiguity, no k unless they intended same meaning If one party aware, binding K based on ignorant party's reasonable meaning 2. Mutual mistake (both parties mistaken about fact at time of K formation) Can be voidable by adversely affected party (3 requirements) 3. Unilateral Mistake (if non-mistaken party knew/should have known other party didn't know of mistake, voidable by mistaken party (3 requirements) 4. Mistake of intermediary (as transmitted unless other party knew/should have known of mistake) 5. Misrepresentation (party can rescind agreement and pursue remedies for breach --Fraudulent misrep = K voidable by innocent party if they justifiably relied on fraudulent misrepresentation.) --Material misrep. = K voidable if misrep. was material / P justifiably relied on it and / it would induce reasonable person to rely OR maker of misrep. knows this P would rely on that particular. misrep).

Answer 6

Illegality Unconscoinability (usually due to some unfairness in bargaining process)

Answer 7

If K as modified falls within SoF, modification must be in writing CL: allowed, EVEN when express K provision says no UCC: if the K has a provision that must be modified by signed writing, that will be enforced under UCC, but if one party is non-merchant, requires them to sign that provision

Answer 8

1) specially manufactured goods 2) goods paid OR accepted --> if indivisible item is partially paid for, the SoF satisfied for whole item

Answer 9

- specialty goods (w/ substantial beginning / commitments for purchase ) - admissions in pleadings in court - merchants confirmatory memo (if not rejected w/in 10 days)

Answer 10

One/more writings 1) reasonably identify subject matter 2) indicate K has been make btw parties 3) state essential terms with reasonable certainty

Answer 11

If part performance takes K out of SOF, aggrieved party may sue on the k for expectation damages (rather than merely in restitution for value of benefit conferred)

Answer 12

Fully integrated written agreement cannot be supplemented by evidence of prior/ contempt oral or written agreement if purpose is to vary terms of agreement

Answer 13

UCC Assume all writings are partial integrations and writing may not be contradicted but may be supplemented w/ consistent additional terms (unless merger clause or courts find it was fully integrated; regardless, terms my be explained/supplemented by course dealing/ course perform/ usage of trade

Answer 14

- goes to validity issues (formation, condition precedent to K's effectiveness, consideration paid or not, mistake entitling him to reformation of agreement) -colatteral agreements to the writing (incl. naturally omitted terms) - goes to interpretation (not varying terms, but interpreting terms) -evidene of subsequent modifications

Answer 15

reasonable at time for delivers

Answer 16

seller's ppb

Answer 17

reasonable

Answer 18

time and place buyer receives goods

Answer 19

by any seller by affirmation / promise or model extremely difficult to disclaim

Answer 20

Title fitness for purpose merchantability

Answer 21

free and clear, transfer rightful, no leins/incumberances any seller disclaim by specific language or circumstances showing seller does not claim title

Answer 22

merchants sellers only who usually do these kinds of goods fit for ordinary purposes disclaimed by disclaimer mentioning "merchantability" (if written must be conspicuous)

Answer 23

by any seller who knows buyer is buying or specific purpose and who knows/should know buyer is relying on seller's expertise disclaim if conspicuous written disclaimer (like "as is")

Answer 24

diff btw goods tenders and as warranted title: rescind contract OR revoke acceptance of goods OR sue for damages (usually value of goods b/c buyer now has nothing if true title holder took goods back)

Answer 25

anyone you'd reasonable forsee getting hurt by goods (buyer, family, guests in home)

Answer 26

risk stays on seller until buyer accepts goods or seller cures (or never in case of buyer's outright rejection) (if buyer rightfully revokes acceptance, risk treated as always having been on seller)

Answer 27

Merchant seller: tender Non-Merhcant seller: when buyer takes possession

Answer 28

Carrier: (payment when buyer assumes risk) (1) shipment K (risk to buyer when goods go to carrier) (article 2 assumes it's a shipment K unless clearly not) (2) destination K (risk to buyer when goods tendered to buyer at destination) Non-Carrier (payment when goods tendederd to buyer) = parties didn't intend goods to be moved by a common carrier FOB CITY = risk to buyer when goods at named city FAS = on a boat and risk to buyer when goods are on delivered to the dock

Answer 29

1. if goods identified in K, contract is avoided 2) if goods not identified when k made, seller must prove impracticability

Answer 30

CL: substantial performance UCC: perfect tender

Answer 31

When parties bound in K, they may have to perform immediately (promise) or only subject to another occurrence (condition) - failure of condition to occur discharges party's duty under K Failure of promise is breach giving rise to liability; failure of condition relieves party of obligation to perform INTERP: look to intent of parties, if depends on third party, likely condition; if unclear, courts go with promise note: "when..." usually not a condition but just indicating a time for performance if it deals w/ timing and not within control of obligee

Answer 32

K can't be enforced b/c of failed condition, but party has fully / partially performed ---> can usually recover unjust enrichment

Answer 33

Duty not absolute until condition is performed or legally excused when condition legally excused? -wrongful party prevents condition -waiver/estoppel (party to benefit from condition may waive, no consideration required if ancillary to K) -Actual Breach -Anticipatory repudiation / unwillingness to perform -substantial performance -imposs / impract/ frustration

Answer 34

Parties can discharge duties by recission Agreement to rescind is itself a binding agreement; k duties must be executory on both sides -mutual and supported by consideration -of unilateral K where one party already performed, recission requires (!) new consideration by non-performing party; or PEstop; OR manifest of intent to gift

Answer 35

Objective, from facts arising AFTER k formed, K discharged / each party excused from duties ; either party may sue for recission and receive restitution of goods delivered, payments made, etc. Ex: death/ incapacity, supervening illegality, subsequent destruction of subject matter of K (won't discharge building K, but will for remodeling K)

Answer 36

performance extreme/unreasonable b/c something occurred and its non occurrence was basic assumption upon which the K was made (shortage of raw materials, crop failure, war/emgargo)

Answer 37

supervening act, not reasonable foreseen, purpose of K has been completely/ nearly destroyed, both parties understood purpose at time of K formation

Answer 38

a) benefit received by good guy b) can good guy adequately be compensated c) extent of bad guy's performance/likelhood they will perform remainder d) negligent /willful behavior of bad guy hardship to bad guy

Answer 39

Minor: obligee gained substantial benefit of bargain, therefore aggrieved party not relieved of duty to perform (but right to damages for minor breach) (late to perform usually minor) material: obligee did not receive substantial benefit of bargain (Good guy discharged of any further obligations and may immediately sue for damages / other remedies for breach)

Answer 40

Material Breach

Answer 41

1) accept all 2) reject all 3) accept part and reject part (commercial units)

Answer 42

Can accept by indicating to seller that goods conform can acknowledge imperfections and accept anyway fail to reject within reasonable time / fail to notify of rejection any act inconsistent with seller's ownership

Answer 43

1) usually must pay price minus damages from seller's breach 2) sometimes can revoke acceptance if defect substantially impairs value & accepted w/ reasonable belief would be cured and it has not been OR accepted goods b/c hard to inspect and seller said they conformed

Answer 44

1)reasonable time after discovers/should have discovered defects 2) before substantial change (not do to defect) occurs in goods

Answer 45

can cure w/in original K term and if give reasonable notice of intent to cure can cure beyond original K term if buyer rejects goods seller reasonably believed would be acceptable (even though imperfect) and seller tells buyer of intent to cure (now seller gets reasonable time)

Answer 46

Can reject installment if it substantially impairs value of installment and cannot be cured whole K breach ONLY if nonconformity substantially impairs the value of entire K

Answer 47

Specific Performance, Defense against specific performance action: Equitable Defenses (Laches - too much time; Unclean hands; Sale to BFP)

Answer 48

Usually reserved for land (all land unique) and rare/antique goods never for services but may enjoin person from competing as opposed to compelling them to act

Answer 49

- Cancellation (cancel k when reject non-conforming goods) -Replevy (sieze goods) --goods must be identified in K, buyer has paid at least partially --only ok if (1) seller involvent w/in 10 days of buyer's first payment; OR (2) goods for personal, family or household purchases OR (3) buyer can't cover after reasonable try (but not if can get same goods at higher price) -Specific performance of unique goods even if goods not yet identified

Answer 50

Withold goods, recover goods , demand assurances (if reasonable reasons for insecurity, demand must be in writing) (may suspend while waiting and may treat k as repudiated if no reassurance w/in 30 days)

Answer 51

Can't be too speculative Expectation, Reliance, Incidental, consequential Normal measure is expectant damages: put non breaching party in position they would be in if promise had been performed -usually sufficient damages to buy a substitute performance (expectation damages/benefit of bargain)

Answer 52

If expectation damages too speculative, aggrieved party can elect for this. give p back cost of performance, put them in position like K had never been made

Answer 53

incurred as a result of the breach, foreseeability doesn't matter here!

Answer 54

arise b/c of non-breaching party's particular circumstances; only to extent reasonable person would have foreseen damages a probably result of breach - breaching party must have known or had reason to know of special circumstances -in sale of goods only buyers can get consequential damages (never sellers)

Answer 55

generally a no no in K cases

Answer 56

Liq. Damages clause enforceable only if (1) damages for breach difficult to estimate or ascertain at time of K formation AND (2) amount is reasonable forecast of compensatory damages in case of breach Won't enforce if it seems like a penalty clause, won't enforce single lump sum regardless of severity of breach; can recover under valid liq. damages clause even if breach caused no actual damages

Answer 57

If seller does not deliver: Benefit of Bargain OR Cover PLUS (incident +foreseeable conseq. - expenses saved) If buyer doesn't accept Benefit of bargain OR Resale OR Lost profit (only for lost volume seller) OR Action for Price (only if buyer has goods or seller can't resell at reasonable price) PLUS (incidental damages - expenses saved)

Answer 58

Look at Substantinal Performance Divisiblity Restitution (in that order)

Answer 59

Damages are usually (reasonable value of services provided) - (damages to non-breaching party)

Answer 60

Out non-breaching party in position they would have been in had the contract been performed

Contracts Basic Flashcards

(87 cards)