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Flashcards in Contracts II Deck (27):

Unilateral v. Mutual mistake doctrine

Unilaterial mistake is done by one party - there is no relief; Mutual mistake is a mistake shared by both parties- no contract was formed at all, or the contract should be subject to either recission (cancellation) or reformation (re-writing by the court)


Meaning of Basic Assumption

If the assumption is a central part of the bargain it is basic.


When can a unilaterial mistake allows one avoid a contract

The party must prove that: (1) enforcement od the contract would be unconscionable or (2) the other party party KNEW or SHOULD HAVE KNOWN of the mistake or somehow was at fault for creating the mistake



Mistake as to the facts as they existed just prior to the contract


What is a condition precedent

An event that must occur BEFORE performance under a contract.


What is a condition subsequent

An event with Discharge duties after it becomes absolute.


When can a party who is owed a condition force the other party to perform?

A party to whom a duty is owed must prove the occurrence of all conditions precedent to that duty in order to compel the party owing that duty to perfrom or to show the latter has breached by not performing.


When a duty is deemed to be the subject of a condition subsequent . . .

it is the party owing the duty who must bear the burden of proving that the condition has occured discharging him


A concurrent condition is what?

A particular type of condition precedent which exists only when the parties to a contract are to exchange PERFORMANCE at the SAME TIME


What is the difference between express and constructive conditions

Express conditions - any conditions on which the parties agree stated or implied from conduct.

Constructive Condition - not one agreed upon by the parties by the court imposes as a matter of law in order to ensure fairness.


What is a condition implied in fact

An express condition, implied by the parties action in the contract


What is a condition implied in law

Constructive condition - made by the courts to ensure fairness


What is a promise in the context of a condition.

An act. If the act is a condition to the DUTY of the other party, than non-performance will discharge the duty; if the contract is in reference to a PROMISE by him to do an act then non-performance will be a breach entitiling damages.


Is strict compliance necessary with an express condition?

Yes, ordinarily it is. Unless it promotes a forfeiture.


When is concurrent conditions used?

Each party must be both an ability and willingness to perform, each parties duty to perfrom is constructively condition upon the others manifestation of an ability and willingness to perform


What is the meaning of Tender

It is to OFFER performance to the other party. He must perform or offer to perform with the ability to do so.


What is an Assignment?

An assignment is a present transfer of a party's already-existing rights under a contract


What are the rights of the obligor

The Assignee takes subject to any defenses which could have been asserted by the obligor against the assinor


What is a delegation?

Delegation is a present transfer of a party's already-existing duties under a contract.


What is a third party beneficiary?

A person who is not a party to the contract becomes a 3rd Party Beneficiary if the parties to the contract intend to confer a benefit to that person


Right to sue?

A 3rd PArty Beneficiary has the right to sue; an incidental beneficiary may not sue


What is an incidental beneficiary

One who benefits by perfromance but the original partoes did not intent to confer a benefit.


When does a party vest?

The power to modify or discharge the contract terminates when the third party beneficiary's rights have VESTED.


When does the vesting occur?

Vesting occurs when before the beneficiary receives notice of the modification, the beneficiary either (1) change her position in justifiable reliance on the contract; (2) brings suit on the contract or (3) manifests assents to it.


Assignments and delegations

When a party to an existing contract transfers to a third person his rights under the contract he has made an assignment;

When a third party transfers his duties under the contract he has made a delegation


What is creditor beneficiary

Creditor beneficiary: Not a gift then creditor;


What is a donee beneficiary

Promisor entering the contract conferring a gift