Contracts - Defenses & Remedies Flashcards Preview

Bar Exam 2014 > Contracts - Defenses & Remedies > Flashcards

Flashcards in Contracts - Defenses & Remedies Deck (13):
1

Mutual Mistake

Both parties are mistaken about a material element that goes to the heart/essence of the bargain. Remedy: Rescission.

2

Unilateral Mistake

K enforceable against mistaken party unless non-mistaken party knew or should have known of the other's mistake.

3

Anti Assignment Clause

Assignor doesn't have to consult the other party to the K. Assignment can't have any effect on the duties of the other party to the K, & can't reduce the possibility of the other party receiving full performance of the same quality ie. certain kinds of performance can't be assigned, because they create a unique relationship between the parties to the K.

4

Implied in Law K

Legal substitute for a K formed to impose equity between two parties. K should have been
formed, even though in actuality it was not.

5

Implied in Fact K

Agreement founded on a meeting of the minds, so although not embodied in an express K, is inferred from the conduct of the parties.

6

Specific Performance

Remedy used to enforce a K for the sale of a
unique item of personal property or real property.

7

Condition Precedent

An act or an event (other than the lapse of time) that must occur first before a party is under a duty to perform.

8

Ks w/ Minors

Minors are regarded as not having sufficient capacity to comprehend questions involving contractual rights. A person dealing with a minor does so at his own peril and subject to the right of the minor to avoid the K. Not voidable: Taxes, Penalties, Bank regulations, Military, Necessaries (food, clothing, shelter)

9

Statute of Frauds

Some things, in order to be enforceable need to be in writing.
•Marriage
•Year (1) (Ks that can't be performed in less than 1 yr)
•Land (exception: part performance)
•Executor
•Guarantee (or suretyship) (exception: main purpose rule)
•Sale of goods ($500+)

10

Main Purpose Rule

An oral promise to answer for the debt of another is
enforceable if the promisor’s main purpose is to further his own economic advantage.

11

Parol Evidence Rule (used at trial)

Once the parties have reduced their agreement to a
writing, evidence of any prior oral, written or
contemporaneous oral agreements is inadmissible to alter, vary, or contradict the terms of the writing. (May come in to supplement or explain terms.)

12

Parol Evidence Rule Exceptions

Allows contemporaneous oral agreements to prevent:
•Fraud
•Mistake
•Illegality
•Duress
•Partial Integration
•Conditions precedent

13

FOB

Free on Board, by itself means nothing, what comes after?
FOB seller's place of business: Once leaves seller's place of business - risk of loss passes to buyer.
FOB buyer's place of business: If buyer's place of business, then seller on the hook for risk until arrives at buyer's place of business.