Contracts Final Flashcards

(38 cards)

1
Q

Statute of Frauds

A

a contract for sale of goods for price of $500 or more is not enforceable unless there is some writing sufficient to indicate that a contract for sale has been made between parties and is signed by the party against whom enforcement is sought

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2
Q

Parol Evidence Rule Reason

A

Prevents parties to a written contract from presenting evidence of terms that may contradict or modify the contract

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3
Q

Parol Evidence Analysis

A
  1. is there a writing?
  2. is it partially integrated? (parties intended for writing to represent the final expression of one term); if yes, then consistent evidence is admitted and inconsistent is excluded
  3. is it completely integrated? (intend for it to be exclusive and final expression); if yes, then no evidence within scope of contract is admitted
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4
Q

Parol Evidence Exceptions

A
  1. establish grounds for recession
  2. determine whether agreement is integrated
  3. ambiguous terms (context JDX vs. Plain meaning JDX)
  4. evidence of separate (collateral) agreements
  5. evidence after date of writing
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5
Q

Implied Warranty of Merchantability

A

unless excluded or modified, a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind

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6
Q

Implied Warranty of Fitness for a Particular Purpose

A

where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose

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7
Q

Express Warranties

A

a. an explicit promise or guarantee by the seller that goods will have certain qualities
b. any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates and express warranty that the goods shall conform to the affirmation or promise

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8
Q

Mutual Mistake

A
  1. mistake (of fact) of both parties
  2. basic assumption
  3. material effect (party must show that resulting imbalance in the agreed exchange is so severe that he cannot fairly be required to carry it out
  4. contract is voidable unless he bears the risk of mistake
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9
Q

Unilateral Mistake

A
  1. mistake (of fact) of one party
  2. basic assumption
  3. material effect on agreed exchange of performances
  4. contract voidable if he does not bear risk of the mistake under the rule and effect of mistake is such that enforcement of the contract would be unconscionable or the party had reason to know of mistake or his fault caused the mistake
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10
Q

When Party Bears Risk of Mistake

A
  1. Agreement of parties (risk allocated by agreement)
  2. Conscious ignorance (aware at time of contract that only has limited knowledge & treats it as sufficient)
  3. Allocation by the court (risk allocated by the court)
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11
Q

Misrepresentation

A

a. Misrepresentation of fact not opinion
b. silence when half-truths, actively conceal fact, or if there is duty to disclose
c. fraudulent or material
d. which induced assent of aggrieved party
d. aggrieved party relied on misrepresentation
e. they were justified in relying on it

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12
Q

Fraudulent (misrepresentation)

A

maker knows it is false or maker does not have a basis for the representation/opinion

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13
Q

Material (misrepresentation)

A

representation is likely to induce a reasonable person to manifest assent or maker knows the representation is likely to induce this specific person to assent, even though a reasonable person would not assent

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14
Q

Duress

A

a wrongful threat that induces a party to agree to a contract or contract modification
Can be shown by proof of threat of serious physical injury or death, or proof of threat to do something that would cause the victim to suffer financial loss

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15
Q

Unconscionability

A

a. deal seems unfair or one sided
b. deal includes rules relating to: infancy, mental incapacity, undue influence, duress, fraud, misrepresentation, bad faith & mistake

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16
Q

Contracts Against Public Policy

A

Court must find that a valuable societal interest exists and that enforcement of this contract will materially harm that interest, directly or indirectly

17
Q

Conditions

A

Can be express or implied; precedent (gives rise to legal duties) & subsequent (extinguishes legal duties)

18
Q

Express Conditions

A

Strict compliance for express conditions (Brown)

19
Q

Excuses for Conditions: Forfeiture

A

occurs when party has relief on the bargain and insistence on strict compliance with the conditions cause him to fail to receive the expected benefits from the deal

20
Q

Excuses for Conditions: Waiver

A

something does/says to indicate to a party that they no longer have to do it

21
Q

Excuses for Conditions: Estoppel

A

someone tells party that the rule no longer applies and party relies on this

22
Q

Substantial Performance/Material Breach Factors

A
  1. deprivation of benefit
  2. adequacy of compensation
  3. degree of forfeiture
  4. likelihood of cure
  5. good faith and fair dealing
23
Q

Excuses from Performance: Impossibility

A

performance under contract become literally, objectively impossible because circumstances arise after contract formation that were beyond control of the parties

24
Q

Excuses from Performance: Impracticability

A

where, after contract is made, party’s performance is made impracticable without his fault by occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render the performance is discharged, unless the language or the circumstances indicate the contrary

25
Excuses from Performance: Frustration
Addresses the risk that the consideration a party receives may become unexpectedly worthless; fulfilling contract is pointless but still possible
26
Anticipatory Repudiation
Before performance is due, a party says she will commit a material breach
27
What constitutes anticipatory repudiation?
Party makes a positive statement that indicates she will commit a material breach or engages in some other voluntary act that will make her unable to perform her contractual obligations without a material breach
28
Positive Statement (anticipatory repudiation)
unequivocal; language but be sufficiently positive to be reasonably interpreted to mean the party will not or cannot perform w/o a material breach
29
Voluntary Act (anticipatory repudiation)
voluntary and affirmative and must make it actually or apparently impossible for him to perform without a material/total breach
30
Reasonable Assurances
if you have reasonable grounds to believe other party will not perform: you can demand reasonable assurances (written confirmation, meeting, inspection, bond or guaranty); if not provided = anticipatory repudiation
31
Expectation Damages
D's promised performance (contract price) - benefits P received from not having to complete their own performance
32
Reliance Damages
Puts the non breaching party in the position they would have been if there had been no contract
33
Restitution Damages
requires breaching party to return or pay for any benefits they received from the non breaching party, thus putting them in the position they would have been had there been no contract
34
Damages Limitations: Foreseeability
damages can't be recovered unless they were foreseeable by the party in breach at the time the contract was made
35
Damages Limitations: Avoidability
damages are not recoverable for loss that the injured party could have avoided without undue risk, burden, or humiliation
36
Damages Limitations: Certainty
damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty
37
Liquidated Damages
meant to resolve difficult-to-qualify number into a specific one, and to fix in advance the total cost of breach from D's perspective
38
Injunctions
Specific Performance: real estate and unique goods; court may order party to perform Negative Injunction: prevents a party from doing something