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Flashcards in Defenses Deck (35)
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1
Q

Lack of Capacity Categories

A
  • Minors
  • Intoxicated Persons
  • Mentally incompetent persons
2
Q

Lack of capacity General rule

A

an incapacitated defendant has the right to disaffirm the contract

(she does not have to disaffirm, but she can if she wants to avoid the k)

3
Q

Implied affirmation after gaining capacity

A
  • If someone gains capacity, they impliedly affirm the k if they still reap the benefits.
    • e.g. minor turns 18 and waits 3 months before rescinding k.
4
Q

Exception to incapacity defense

A
  • An incapacitated party is liable for necessaries (i.e. food, shelter, clothing, or medical care), but only for their reasonable value, not the k price.
  • Have to pay restitution, not k price. Reasonable value
5
Q

Ambiguity/Misunderstanding

A
  • If neither party has any idea about the ambiguity or misunderstanding, k not enforceable.
  • Parties go home without a transaction. If one party knows about it, hold it against them.
6
Q

Mutual mistake about a material fact

A
  • If both are mistaken about the material fact, not enforceable.
  • BUT, if both are only mistaken about the value of the item, still enforceable.
7
Q

Unilateral mistake

A
  • Courts reluctant to let mistake off the hook, because the other party is relying on it.
  • BUT, if party knew or should have known it was a mistake, not enforceable.
  • Can’t take advantage of someone’s obvious mistake.
8
Q

Effect of Unconscionability on the rest of the K

A

Empowers a ct to enforce all or part of an agreement.

9
Q

Unconscionability tests

A
  • party must be subject to unfair surprise(e.g. all your stuff repossessed)
  • k must have oppressive terms (e.g. acceleration clause that allows company to repossess despite paying 90% of the balance).
10
Q

When Unconscionability is tested by the ct

A
  • Unconscionability is tested by the court at the time the agreement was made.
  • MBE usually tests over this.
11
Q

Unconscionability of long term k that now looks one-sided/unprofitable to one party

A

This is not unconscionable

12
Q

VA unconscionability

A

applies only to formation of k, whereas good faith obligation applies only to performance or enforcement of the k.

13
Q

economic duress

A
  • bad guy makes an improper threat, e.g. threat to breach the k.
  • vulnerable guy- no reasonable alternative, e.g. cannot mitigate damages
14
Q

Most commonly tested topic

A

Staute of Frauds

15
Q

When is a writing required under the SoF?

A

MY LEGS

  • marraige
  • year
  • land
  • executor
  • goods 500+
  • suretyship
16
Q

Marriage & SoF

A
  • Kx in consideration of marriage are subject to SoF, NOT a promise to marry!
  • e.g. I promise to marry you—not within SoF, but cts likely won’t enforce it.
  • e.g. I promise not to go after the house if we get married—within SoF
17
Q

SoF Year Requirement

A
  • Kx which cannot possibly be completed in 1 year or less.
    • Look at the dates!
    • e.g. job k that binds party for more than 1 year, or k for concert more than a year from now.
  • It does not matter if performance actually takes more than a year.
    • As long as full performance within a year was theoretically possible, no writing is required by the SoF. Incl. lifetime kx.
    • But no date needs to be specified
18
Q

Land Sale/Transfer of an interest in real prop and SoF

A
  • Includes transfers of interest of land for more than one year
  • Authorizing an agent to enter in land is within SoF only if original underlying k is within SoF.
19
Q

Executors & SoF

A

Promises by executor of an estate to pay the estate’s debts from some other source of funds/out of his own pockets within the SoF.

Likely not to be tested

20
Q

Suretyship and SoF

A
  • A promise to answer for the debt of another person,
    • e.g. If he doesn’t pay you, I will.
  • If surety is an answer on the exam, it’s likely the wrong answer.
  • But watch out, not the same as a mere promise to pay money.
  • Promises to pay $$ not necessarily within the SoF. e.g. I’ll pay you to do that for him.
21
Q

VA SoF

A

Contract to devise property by will

For an oral agreement to make such a devise enforceable despite SoF, the following requirements must be met:

  • agreement must be certain and definite in its terms;
  • acts done in part performance must have been done pursuant to the agreement
  • k must have been so far executed that a refusal to enforce it would operate a fraud upon the party rendering services and, if found unenforceable, party rendering services may seek restitution
22
Q

K modification and interaction with SoF

A

The modification must be in writing only if the k as modified (not the original k) is within the SoF

23
Q

Oral modification clauses under the CL

A
  • unenforceable.
  • You can generally modify a k orally under common law even if you have agreed not to!
24
Q

UCC oral modification clauses

A

clauses that prohibit oral modification are enforceable unless waived

25
Q

Adequate writing- UCC

A
  • must contain a quantity and be signed by the party to be charged with breach
  • Doesn’t matter if party suing signed it and put quantity if party to be charged did not.
26
Q

Adequate writing- CL

A
  • must have all material terms and signed by party to be charged with breach
  • Material terms=who and what who it’s between and what it’s about
27
Q

Adequate writing in VA

A

writing need not conclusively establish existence of a k so long as it provides a basis for believing that the offered ev rests on a real transaction

28
Q

SoF exceptions- land sale/real prop

A
  • Leases of one year or less;
  • Part performance of real estate- need 2 out of 3: some payment possession improvements
29
Q

Performance and SoF

A

Full performance of service k satisfies SoF, but part performance does not

30
Q

Types of UCC SoF exceptions

A
  • Goods accepted or paid for by buyer;
  • Custom-made goods;
  • Judicial admission;
  • Merchants’ confirmatory memo;
  • Suretyship
  • main purpose
31
Q

UCC SoF Exception

Goods accepted or paid for by buyer

A
  • SoF defense for any remaining goods not accepted/paid still valid.
  • But, cannot apportion one high value item, esp. if all buyer paid was a deposit.
  • So exception made if buyer paid a deposit on a high value item.
32
Q

UCC SoF Exception

Custom-made goods

A
  • need to show a substantial beginning to satisfy exception
    • i.e. that the goods are custom made and not suitable for others.
33
Q

UCC SoF Exception-

Judicial admission

A

if a party admits under oath that she had a deal, then she will lose her SoF defense.

34
Q

UCC SoF Exception

Merchants’ Confirmatory memo

A

One party can use its own signed writing to satisfy the SoF against the other party if:

  • Both parties are merchants
  • Writing claims agreement and has quantity;
  • and There’s no written obj. within 10 days.

BUT, objection must be that a k existed. Objection to the terms themselves actually fills SoF requirement, but smallest quantity agreed upon is all that’s enforceable.

35
Q

UCC SoF Exception

Suretyship

A

the main purpose exception. If main purpose in surety is to benefit the payor, not within SoF/writing not required.