dsfdsf Flashcards

Question

[Con Law] Congressional Authority to Act Necessary and Proper Clause

Answer 1

Under the Necessary and Proper Clause, Congress may choose any means not prohibited by the Constitution to carry out its authority.

Answer 2

Congress may use its Taxing Power to levy any tax **(1)** **reasonably related to raising revenue** , or **(2)** where Congress has the **power to regulate** the activity taxed.

Answer 3

Congress may use its Spending Power to **spend for the general welfare**.

Answer 4

Congress may use its Commerce Power to regulate: **(1)** the **channels** of interstate commerce, **(2)** the **instrumentalities and persons and things** in interstate commerce; and **(3)** economic activities that have a **substantial effect on interstate commerce** the effect can be cumulative, but where the regulated activity is non-economic, the substantial effect _may not_ be based on the cumulative effect on interstate commerce.

Answer 5

The 10 th Amendment limits congressional powers, and reserves to the states or people all powers not granted to the United States or prohibited by it.

Answer 6

Congress _cannot_ compel state regulatory or legislative action, but may **induce state action** by **conditioning spending** so long as the conditions are **expressly stated** and **relate to the purpose of the spending program**.

Answer 7

Congress _may_ prohibit **harmful commercial activity** by the states.

Answer 8

Section 5 of the 14 th Amendment is Congress power to enforce the provisions of the 14 th Amendment. Congress may _not_**create** new rights or **expand** the scope of existing rights, but can act to **prevent or remedy violations of rights** recognized by the courts. Congress means, though, must be **congruent and proportional** to remedying proven constitutional violations.

Answer 9

Congress has broad power to delegate its legislative power to the executive or legislative branches, so long as **intelligible standards** are set. It cannot, however, delegate powers uniquely defined to Congress (as set forth in the Constitution), nor can it delegate **executive power to itself** or its officers.

Answer 10

Legislative and line-item vetoes are **unconstitutional** because they violate the requirements of **bicameralism and presentment**. Rather, the President must sign or veto a bill **in its entirety**.

Answer 11

Treaties are agreements between the United States and a foreign country that are **negotiated by the President** and effective when **ratified by the Senate**. They prevail over **conflicting****state laws**, due to the Supremacy Clause. Where a treaty conflicts with a**federal statute**, the one adopted**last in time controls**. A treaty can _never_ conflict with the**Constitution**.

Answer 12

Executive agreements are agreements between the United States and a foreign country that are effective **when signed by the President and the head of a foreign nation**. They can be used for any purpose, and prevail over any **conflicting state laws**. Any conflicting **federal law** or the **Constitution** , however, prevail over an executive agreement.

Answer 13

The President has **no power to declare war** , but has broad power as **commander-in-chief** to use American troops in foreign countries (which is a political question).

Answer 14

The Presidents power as chief executive depends on whether he acts with the express or implied authority of Congress, where Congress is silent, or against Congress express will.

Answer 15

The Presidents authority is at its zenith and his actions are **likely valid**

Answer 16

The Presidents actions will be **upheld** unless they **usurp the power** of another governmental branch or **prevent another branch** from carrying out its tasks

Answer 17

The President has little authority, and his action is **likely invalid**

Answer 18

The President alone appoints: **(1)** **ambassadors** , **(2)** **federal judges** , and **(3)** **officers of the United States** with the **advice and consent of the Senate**. Congress may vest appointments of inferior officersi.e., those that can be fired by officers of the United Statesin the President, the heads of departments or the lower courts. Congress may _not_ , however, give itself or its officers the appointment power.

Answer 19

Unless removal is limited by statute, the President **may fire** any executive branch officer. Congress may limit removal if it is an office where **independence from the President** is desirable (e.g., independent counsel). Congress _cannot_ limit removal of the **Presidents cabinet** , and cannot prohibit removal, but can limit it to where **good cause** exists.

Answer 20

The President, Vice President, federal judges and officers of the United States can be impeached and removed from office for **treason, bribery or high crimes and misdemeanors**. The House has the **sole power to impeach** (by _majority_ vote), but the Senate has the **power to conduct a trial** to convict (by _two-thirds_ vote) and remove.

Answer 21

The President has **absolute immunity in civil suits** for money damages for any actions taken while in office, but **_no_** **immunity** for actions that occurred **prior to taking office**.

Answer 22

The President may invoke executive privilege for presidential papers and conversations, but this privilege will yield when necessary to **other important government interests**.

Answer 23

The President has the power to pardon those accused or convicted of **federal crimes** (but _not_ state crimes or civil liability), **except** the President cannot pardon someone for offenses that **resulted in impeachment** by the House.

Answer 24

Federal law expressly preempts state regulation where a federal statute states expressly that federal law is **exclusive**.

Answer 25

Federal law may also impliedly preempt state regulation, even though its technically silent on the subject.

Answer 26

Congress preempts an entire field where: **(1)** it has **intent to occupy the field** , as evidenced by regulation that is significantly comprehensive in scope, or **(2)** where Congress **creates an agency** to administer the field.

Answer 27

If federal and state laws are **mutually exclusive** (i.e., one cannot simultaneously comply with both), federal law preempts, **except** where the federal law simply expresses a minimum or floor (e.g., environmental regulations). Further, federal law preempts state regulation where the latter **interferes with a federal objective**.

Answer 28

If Congress evidences a **clear intent to preempt** state law, federal law preempts.

Answer 29

A state may _not_ tax or regulate federal government activitythere is **inter-governmental immunity**. It is **unconstitutional** to compel payment of a state tax out of the **federal treasury**. Note that the federal government never needs to comply with state pollution control laws.

Answer 30

Congress may subject state and local government activities to regulation or taxation if the law or tax applies to **both the public and private sectors** a tax applicable to only the state government may be limited by the **10** **th** **Amendment**. Congress may not **coerce** or **commandeer** state governments, but may indirectly regulate states using its **Spending Power** by **imposing conditions** on the grant of federal funds.

Answer 31

The federal government may not coerce states to act in a certain way by over-penalizing their failure to do so.

Answer 32

The federal government may not require states to regulate their own citizens by commandeering them to perform acts in aid of federal law without funding such activities.

Answer 33

A state may _not_ directly tax **federal instrumentalities** without the consent of Congress. However, nondiscriminatory taxes are permissible if they **do not unreasonably burden** the federal government. States may _not_ regulate the federal government or its agents while performing their federal functions.

Answer 34

The Dormant Commerce Clause is the negative implication of the Commerce Clause. A state law violates the dormant commerce clause if it either: **(1)** **discriminates against out-of-state competition** to benefit local economic interests, or **(2)** is **unduly burdensome** (i.e., the legitimate local benefits do not outweigh the incidental burden on interstate commerce).

Answer 35

There are _3 exceptions_ : **(1)** **Congress approves** ; **(2)** the law **furthers an important non-economic state interest** and there are **no reasonably nondiscriminatory alternatives** ; or **(3)** the state or local body is a **market participant** , in which case it can charge higher fees to out-of-staters but cannot institute an outright ban (e.g., UC schools can charge less in tuition to its own residents, or a state-owned cement factory can charge less to in-state purchasers) **.** Congress, however, _can_**consent** to state regulation of commerce even if it constitutes an undue burden.

Answer 36

The Privileges and Immunities Clause of Article IV prohibits discrimination by a state against **non-citizens (of the state)** corporations and aliens are not protectedas to **fundamental rights** (civil liberties and important commercial activities). A state law discriminating against non-citizens in the exercise of fundamental rights may only be valid if the state has a **substantial justification** for the different treatment and there are **no** **less restrictive means** to solve the problem.

Answer 37

The Privileges or Immunities Clause of the 14 th Amendment prohibits states from denying their citizens the privileges or immunities of **national citizenship**. Courts have recognized a **fundamental right to travel** , thus: **(1)** laws **preventing people from moving** into a state, and **(2)** **durational residency requirements** for voting, a _50-day_ period is the maximum allowedmust meet **strict scrutiny**. Restrictions on **foreign travel** , however, need only meet the **rational basis test**.

Answer 38

States may _not_ use their tax systems to help in-state business, and may only tax activities if there is a **substantial nexus** to the state. Further, state taxation of interstate business must be **fairly apportioned** (i.e., tax only the apportionment of activity that transpires within the taxing jurisdiction).

Answer 39

Courts in one state must give **full faith and credit** to judgments of courts in another state so long as: **(1)** the court that rendered judgment had **personal and subject matter jurisdiction** , **(2)** the judgment was **on the merits** , and **(3)** the judgment was **final**.

Answer 40

The Constitution applies only to government action **private conduct** need _not_ comply with the Constitution. However, Congress, by statute, may apply constitutional norms to private conductit may **(1)** use the **13** **th** **Amendment** to prohibit race discrimination, and **(2)** use its **commerce power**. Congress may not use **section 5** , though, because it regulates _only_ state and local governments.

Answer 41

There are several situations in which private conduct must comply with the Constitution: **(1)** where a private entity performs a traditionally **public function** (e.g., company town, elections for public office), or **(2)** where there is **entanglement or significant state involvement** (i.e., the government affirmatively authorizes, encourages or facilitates unconstitutional activity)this seems to apply **_only_** in the case of **race**.

Answer 42

Courts cannot enforce racially restrictive covenants.

Answer 43

There is state action where **(1)** the government leases premises to a restaurant that racially discriminates, **(2)** the state provides free books to schools that racially discriminate, or **(3)** a private entity regulates interscholastic sport within a state.

Answer 44

There is _no_ state action where **(1)** a private school that is over 99% government funded fires a teacher because of her speech, **(2)** the NCAA orders the suspension of a basketball coach at a state university, or **(3)** a private club with a liquor license from the state engages in racial discrimination.

Answer 45

The Bill of Rights applies _only_ to the **federal government** (directly), but has generally been incorporated through the Due Process Clause of the 14 th Amendment to apply to state and local governments as well.

Answer 46

The following rights have _not_ been incorporated against the states: **(1)** the 3 rd Amendment **right to not have a soldier quartered** in ones home, **(2)** the 5 th Amendment **right to grand jury indictment** in criminal cases, **(3)** the 7 th Amendment **right to a jury trial in civil cases** , and **(4)** the 8 th Amendment **right against excessive fines**.

Answer 47

Government action is upheld if it is **rationally related** to a **legitimate** government purpose. The burden is on the **challenger** , who needs to prove only some conceivable legitimate purpose. This test is highly deferential to the government, and the action is usually valid unless it is arbitrary or irrational.

Answer 48

Government action is upheld if it is **substantially related** to an **important** government purpose. The burden is on the **government** , and the court will look _only_ to the governments actual purpose. The means used must be **very good** but _not_ the best or least restrictive possible. The court often uses **narrowly tailored** language here (as it does in strict scrutiny).

Answer 49

Government action is upheld if it is **necessary to achieve** a **compelling** government purpose. The burden is on the **government** , and the court will look _only_ to the governments actual purpose. The means must be **narrowly tailored** and the **least restrictive alternative**.

Answer 50

Discrimination never violates the 13th Amendment -- only slavery itself does. But discrimination can violate a federal law adopted by Congress under the 13th Amendment (Section 2).

Answer 51

Economic liberties are only minimally protected, and thus laws affecting them are subject only to the **rational basis test**.

Answer 52

The federal government may take **private property for public use** if it provides **just compensation**.

Answer 53

Government confiscation or **physical occupation** of property constitutes a possessory taking, except in the case of **emergency**.

Answer 54

Government regulation constitutes a taking if it leaves **no reasonable economically viable use** of the property, but is _not_ a taking where it merely deceases the value of the property. A court will assess whether the regulation interferes with **distinct, investment-backed expectations**.

Answer 55

Government conditions on the development of property must be justified by a **benefit that is roughly proportionate to the burden** imposedotherwise, its a taking.

Answer 56

A property owner may bring a takings challenge to regulations that existed at the time he acquired the property.

Answer 57

Where the government temporarily denies an owner of the use of property, it is _not_ taking so long as the governments action is **reasonable**. A court will examine and weigh all the **relevant circumstances** to determine if **fairness and justice** require just compensation: **(1)** the planners good faith, **(2)** the reasonable expectations of owners, **(3)** the length of delay, **(4)** the delays actual effect on the value of the property.

Answer 58

Property is taken for public use so long as the government acts out of a **reasonable belief the taking will benefit the public** this is defined very broadly.

Answer 59

Just compensation is measured in relation to the loss of the owner in **reasonable market value** terms.

Answer 60

The Contracts Clause prohibits state and local governments from **impairing the obligations** of existing contracts, but _does not_ apply to the federal government.

Answer 61

State legislation that **substantially impairs** an existing **private** contract is invalid unless the legislation: **(1)** serves an **important and legitimate purpose** , and **(2)** is a **reasonable and narrowly tailored** means of promoting that interest.

Answer 62

State legislation that impairs a contract to which the state is a party is subject to **strict scrutiny**.

Answer 63

An ex post facto law is a law that: **(1)** criminally punishes conduct that was **lawful when it was done** , **(2)****increases punishment**for a crime**after it was committed**, or**(3)****reduces the evidence** required to convict a person of a crime from what was required when the act was committed. This prohibition does not apply in civil cases, as retroactive **civil liability** need only meet the **rational basis test**.

Answer 64

A bill of attainder is a law that directs punishment of a specific person or persons **without trial**

Answer 65

The 2 nd Amendment right to bear arms protects militia services and the right of individuals to have funs in the home for security purposes. The right is _not_ absolute, and may be regulated, and the level of scrutiny is not yet known.

Answer 66

Voting is a **fundamental right** under the Equal Protection Clause and the 15 th Amendment. Laws that deny **some** **citizens** the right to vote must meet **strict scrutiny** , but regulations of the electoral process to prevent fraud need only be desirable on balance. Poll taxes are unconstitutional, and voting requirements involving property ownership are almost always unconstitutional.

Answer 67

One-person, one-vote must be met for all state and local elections, and all districts must be approximately equal in population.

Answer 68

At-large elections, in which all voters vote for all office holders, are unconstitutional unless there is proof of a **discriminatory purpose**.

Answer 69

Use of race in drawing election district lines must meet **strict scrutiny**.

Answer 70

Counting uncounted votes without standards in a presidential election violates Equal Protection.

Answer 71

Procedural Due Process guarantees that when one is deprived of **life, liberty or property** , one is entitled to **notice** and an **opportunity to be heard before a neutral magistrate** (unless knowingly and voluntarily waived).

Answer 72

A deprivation of **liberty** occurs where there is a **loss of a significant freedom** provided by the Constitution or a statute. **Harm to reputation** is not, itself, a loss of a liberty. **Examples** : Before an adult or child is institutionalized, certain procedures are required (see below). Prisoners rarely have liberty interests.

Answer 73

A deprivation of **property** occurs where there is an **entitled** a reasonable expectation of continuing receipt of a benefitand that entitled is not fulfilled. There is no distinction between rights and privileges. **Examples** : Continued attendance at public school, welfare benefits and sometimes government employment.

Answer 74

Only **intentional** or **reckless** deprivation, but not mere negligence, of life, liberty or property violates the Due Process Clause. In an emergency, the government is liable only if its actions **shock the conscience**.

Answer 75

Generally, the governments failure to protect people from **privately inflicted harms** does not deny procedural due processthe government has a duty to prevent harm only where it **creates the danger** or the **person is in government custody**.

Answer 76

The type and extent of procedures are determined by a **balancing test** that weighs: **(1)** the **importance of the interest** to the individual (the larger the interest, the more procedures); **(2)** the ability of additional procedures to **increase the accuracy of fact-finding** (whether increased procedures will lead to fewer erroneous deprivations); and **(3)** the **governments interest**.

Answer 77

Before institutionalizing an **adult** , there must be prior **notice and a hearing** , unless in an emergency. **Children** require only a **screening** by a neutral fact finder.

Answer 78

Notice and a hearing before termination.

Answer 79

Post-termination hearing.

Answer 80

Prior notice and opportunity to respond, and subsequent hearing.

Answer 81

Notice of charges and an opportunity to explain.

Answer 82

No due process required.

Answer 83

Prior evidentiary hearing except for **breathalyzer test** suspension statutes.

Answer 84

Notice and a hearing before termination.

Answer 85

Prior notice and hearing for real property, subsequent notice and hearing for personal property.

Answer 86

Instructions to the jury and judicial reviewnothing grossly excessive.

Answer 87

Subsequent notice and a meaningful opportunity to contest factual basis for detention before a neutral decision maker.

Answer 88

Pre-deprivation due process is required except in exigent circumstances. Government may seize property used in illegal activity, even from an innocent party.

Answer 89

Substantive Due Process guarantees that when one is deprived of **life, liberty or property** , one is entitled to an **adequate reason**. Substantive Due Process now also protects various **privacy interests**.

Answer 90

Regulation of fundamental rights is subject to strict scrutiny, which includes: **(1)** the right to **marry** ; **(2)** the right to **procreate** ; **(3)** the right to **custody of ones children** (although the state may create a rebuttable presumption a married womans husband is the father of her child; **(4)** the right to **keep a family together** (including extended family); **(5)** the right to **control the upbringing of ones children** (government cannot order grandparent visitation or choose a childs school); **(6)** the right to **purchase and use contraceptives** ; **(7)** the right to **abortion** ; **(8)** the right to **engage in private consensual homosexual activity** ; **(9)** the right to **refuse medical treatment** ; and **(10)** the right to **read obscene material in ones home** (except for child pornography).

Answer 91

Prior to viability, states _may not_ prohibit abortions, but may regulate them so long as the regulation does not create an **undue burden****on the ability to obtain abortions**. Valid regulations include:**(1)**24-hour waiting periods;**(2)**requiring performance by licensed physicians;**(3)**banning partial birth abortions; and**(4)** requiring distribution of information to ensure informed consent.

Answer 92

After viability, states _may_ prohibit abortions, **unless necessary to protect the womans life or health**.

Answer 93

The government does not have a duty to subsidize abortions or provide them in public hospitals. **Spousal notification** laws are unconstitutional, as the right belongs to a woman alone. A state may require **parental notice and/or consent** for an unmarried minors abortion, so long as it creates a **judicial bypass** to determine if its in the minors best interest or they are sufficiently mature.

Answer 94

Competent adults have a right to refuse medical treatment, even life-saving treatment like food and water. A state may require **clear and convincing evidence** that a person wanted treatment terminated or prevent family members from terminating anothers treatment.

Answer 95

There is no fundamental right to **education** or **physician-assisted suicide**.

Answer 96

Equal Protection ensures the governments differential treatment of people is adequately justified.

Answer 97

The Equal Protection Clause is limited to state and local government action under the 14 th Amendment, but applies to the federal government as well through the 5 th Amendment Due Process Clause.

Answer 98

If a **fundamental right** or **suspect classification** is involved, **strict scrutiny** is used to evaluate the regulation. If a **quasi-suspect classification** is involved, **intermediate scrutiny** is used. For all other classifications, the **rational basis** standard applies.

Answer 99

Classifications involving race or national origin are subject to **strict scrutiny**. If a law is **facially neutral** , though, one must demonstrate both **discriminatory impact** and **discriminatory intent**.

Answer 100

Affirmative action legislation is subject to **strict scrutiny** as well. The court has found that: **(1)** **numerical set-asides** require clear proof of **past discrimination** ; **(2)** educational institutions may use race as **one factor** in admission decisions, but may not use a point-based admissions system using race; and **(3)** **public school systems**_may not_ use race as a factor in assigning students to schools unless it meets **strict scrutiny** thus far, racial diversity is only a compelling interest in college.

Answer 101

Classifications involving gender and legitimacy are subject to **intermediate scrutiny** and require an **exceedingly persuasive justification**. If a law is **facially neutral** , one must demonstrate both **discriminatory impact** and **discriminatory intent**.

Answer 102

Laws benefitting women are subject to **intermediate scrutiny**. Courts have found that: **(1)** classifications based on **role stereotypes** are _not_ permitted; but **(2)** classifications intended to **remedy past discrimination** and disparity in opportunity are okay.

Answer 103

Classifications involving **alienage** are generally subject to **strict scrutiny** , except in the following cases

Answer 104

Classifications involving alienage that concern self-government and the democratic processvoting; serving on a jury; becoming a police officer, teacher or probation officer, _but not_ notary publicare subject to **rational basis** scrutiny.

Answer 105

Classifications involving congressional discrimination against aliens are subject to **rational basis** scrutiny, and are impermissible only where the discrimination is **arbitrary and unreasonable** (as Congress has plenary power over immigration).

Answer 106

Classifications involving undocumented aliens are subject to **rational basis** scrutiny.

Answer 107

Classifications involving undocumented alien children are subject to **intermediate scrutiny**.

Answer 108

Classifications involving **age** , **disability** , **wealth** , **economic** **regulations** , **sexual orientation** , and **anything else** are subject to **rational basis** scrutiny.

Answer 109

The 1 st Amendment prohibits Congress from abridging the freedom of speech, and is applicable to the states through the 14 th Amendment.

Answer 110

Content-based restrictions are those that relate to the **subject matter** (topic) or **viewpoint** (ideology) of speech are subject to **strict scrutiny**.

Answer 111

Content-neutral restrictions that burden speech are subject to **intermediate scrutiny** , and must advance **important interests** unrelated to the suppression of speech and **must not burden substantially more speech than necessary** to further those interests.

Answer 112

Prior restraints are judicial orders or administrative systems (not legislative) that stop speech before it occurs, and are presumptively invalid unless the government can show some **special societal harm justifying restraint** (e.g., national security, preserving a fair trial, contractual agreement, military circumstances, obscenity). For such a prior restraint to be procedurally valid: **(1)** the standards must be **narrowly drawn, reasonable and definite** ; **(2)** the restraining body must **promptly seek an injunction** ; and **(3)** there must be **prompt and final determination** of the validity of the restraint.

Answer 113

Court orders suppressing speech must meet **strict scrutiny** , although a procedurally proper court order must be complied with until vacated or overturned. One violating a court order is **collaterally barred** from later challenging it. **Gag orders on the press** to prevent prejudicial pre-trial publicity are typically unconstitutional.

Answer 114

The government can require a license for speech only if there is an **important reason** for licensing and **clear criteria** leaving **almost no discretion** on the licensing authority. Licensing schemes must contain procedural safeguards such as: **(1)****prompt determination**of requirements for licenses, and**(2)****judicial review**.

Answer 115

A law is unconstitutionally vague and violative of Due Process if a **reasonable person** cannot tell **what speech is prohibited** and what is allowed.

Answer 116

A law is unconstitutionally overbroad if it **regulates substantially more speech** than the Constitution allows to be regulated. Such a regulation is facially invalid and unenforceable against anyone.

Answer 117

The government can regulate symbolic speech (i.e., conduct undertaken to communicate an idea) if: **(1)** the regulation is within its **constitutional power** ; **(2)** it has an **important interest****unrelated to suppression**of the message, and**(3)**the impact on communication is**no greater than necessary**to achieve the governments purpose.**Examples**: Protected symbolic speech includes:**(1)**flag burning, and**(2)**cross burning (unless done with intent to threaten). Unprotected symbolic speech includes:**(1)**burning draft cards, and**(2)** nude dancing. Contribution limits in election campaigns are constitutional, but expenditure limits are not.

Answer 118

Anonymous speech is **protected**.

Answer 119

Government speech cannot be challenged under the 1 st Amendmentthus, one cannot challenge the governments decision to install a monument in a park.

Answer 120

The government has a **compelling** interest in some unprotected categories of speech.

Answer 121

The government may punish speech if there is a **substantial likelihood of imminent illegal activity** and if the speech is directed at causing imminent illegality.

Answer 122

Fighting words (true threats) is unprotected speech, but the Supreme Court has always found statutes regulating fighting words to be **unconstitutionally vague and overbroad**.

Answer 123

Obscenity and sexually oriented speech are obscene where it describes or depicts sexual content that, **taken as a whole** by the **average person** : **(1)** appeals to the **prurient interest** (shameful or morbid interests in sex) using a **community standard** ; **(2)** is **patently offensive** to **community standards** ; and **(3)** **lacks serious artistic, literary, political or scientific value** using a **national standard**.

Answer 124

The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters for the purpose of reducing **secondary effects**.

Answer 125

Child pornography may be **completely banned** even if not obscene, but not pornography involving computer-generated images or young-looking actors.

Answer 126

The government may _not_ punish private possession of obscene materials, except for child pornography.

Answer 127

The government may seize the assets of a business convicted of violating obscenity laws.

Answer 128

Profane and indecent speech is generally protected, except over the broadcast media and in schools (where the government can regulate more heavily).

Answer 129

Advertising for **illegal activity** and **false and deceptive** advertisements are **unprotected**. Commercial speech that **inherently risks deception** can also be prohibited (e.g., the government ma prohibit professionals from practicing under a trade name, or attorneys from in-person solicitation of clients for profit). **Truthful** commercial speech, however, is **protected**.

Answer 130

Speech that proposes lawful activity that is not misleading or fraudulent may be burdened if the regulation: **(1)** serves a **substantial government interest** , **(2)** **directly advances** that interest, and **(3)** is **narrowly tailored** to serve that interestthis is a form of **intermediate scrutiny**.

Answer 131

A public official may recover only by proving **falsity** of the statement and **actual malice** (i.e., knowledge of falsity or reckless disregard of the truth).

Answer 132

A public figure may recover only by proving **falsity** of the statement and **actual malice**.

Answer 133

A private figure, regarding a matter of public concern, may recover only by proving **falsity** of the statement and at least **negligence** by the defendant. By showing **actual malice** , he may also recover **presumed or punitive damages**.

Answer 134

A private figure, regarding a matter _not_ of public concern, is entitled to recover **presumed or punitive damages**_without_ showing **actual malice**.

Answer 135

The government may _not_ create liability for **truthfully reporting** information that was **lawfully obtained** from the government (e.g., press received a rape victims identity from government records). Where the media broadcasts a tape of an **illegally intercepted call** , the media is _not_ liable so long as they **(1)****did not participate in the illegality**and**(2)**it is a**matter of public importance**. The government may limit its dissemination of information to**protect privacy**, though, except that the press and public have a**right to attend criminal trials** and pre-trial proceedings.

Answer 136

Speech by government employees on the job, in the performance of their duties, is _not_ protected.

Answer 137

Public forums are **government properties** that the government is constitutionally required to **make available** for speech and include areas that are **historically open** to speech, such as sidewalks and parks.

Answer 138

Content-based restrictions are subject to **strict scrutiny**.

Answer 139

The government _can_ regulate using **reasonable time, place and manner restrictions** so long as they are: **(1)** **content-neutral** , **(2)** **narrowly tailored** to serve an **important government interest** , and **(3)** leave open **alternative channels** of communication. This is a form of **intermediate scrutiny** , in which the government must use the **least restrictive alternative**.

Answer 140

City officials _cannot_ have discretion in setting permit fees for public demonstrations.

Answer 141

Designated public forums are **government properties** the government **could close** to speech, but chooses to open to speech on a **permanent or limited basis** these are _not_ places that are **historically open** to speech (e.g., public schools). The rules for public forums apply similarly here.

Answer 142

Limited public forums are **government properties** that are limited to **certain groups** or dedicated to the **discussion of only some subjects** (e.g., ads on the side of a bus). The government can regulate in limited public forums so long as: **(1)** it is **viewpoint-neutral** and **(2)** satisfies **rational basis** scrutiny.

Answer 143

Non-public forums are **government properties** that the government constitutionally can and does **close to speech**. Examples include military bases, areas outside prisons and jails, sidewalks on post office property and airports. The government can regulate in limited public forums so long as: **(1)** it is **viewpoint-neutral** and **(2)** satisfies **rational basis** scrutiny.

Answer 144

There is _no_ 1 st Amendment right of access to private property for speech purposes.

Answer 145

Generally, the press has no greater 1 st Amendment freedom that a **private citizen**. The public and press are guaranteed the **right to attend a criminal trial** , but the right may be **outweighed** by an **overriding interest** stated in the trial judges findings.

Answer 146

Viewers and listeners have a right to receive information of **public concern** , but the government may prohibit **indecent speech** over the airwaves. Regulations of broadcast media are subject to something _less than_**strict scrutiny** , and regulations of cable are subject to **intermediate scrutiny**.

Answer 147

Under the 1 st Amendment, one has a right to freedom of association. Laws that prohibit or punish group membership must meet **strict scrutiny**. To punish membership in a group it must be proven that the person **actively affiliated** with the group **knowing of its illegal activities** and with the **specific intent** of **furthering those illegal activities**.

Answer 148

Laws that require disclosure of group membership, where such disclosure would **chill association** , must meet **strict scrutiny** although one may inquire into these activities that are relevant to the employment or benefit sought.

Answer 149

Laws that prohibit a group from discriminating are constitutional, unless they interfere with **intimate association** (small group) or **expressive activity** (e.g., the KKK can exclude blacks).

Answer 150

A statute limiting election campaign contributions is subject to **intermediate scrutiny**. The government may not, however, limit the amount of money spent by a candidate.

Answer 151

The 1 st Amendment Free Exercise Clause prohibits the government from **punishing someone on the basis of her religious beliefs**. A court can inquire into the **genuineness** of ones belief in the religion, but will not declare a religious belief to be false. Where a law is a **neutral law of general applicability** , it is subject only to the **rational basis test** the free exercise clause may not be used to challenge such a law. Where the law is not neutral or generally applicable, though, it is subject to **strict scrutiny**.

Answer 152

The government may _not_ deny benefits to individuals who quit their jobs for religions reasons.

Answer 153

The 1 st Amendment Establishment Clause prohibits laws **respecting the establishment of religion**. If a law contains a **sect preference** or **discriminates against religious speech** , it is subject to **strict scrutiny**. If there is _no_ sect preference, a court will use the **Lemon** test.

Answer 154

A law is unconstitutional if it fails any of the following prongs: **(1)** the law must have a **secular purpose** ; **(2)** the primary effect must be **neither to advance nor inhibit religion** ; and **(3)** there cannot be **excessive government entanglement** with religion.

Answer 155

Government-sponsored religious activity in public schools is unconstitutionalincluding voluntary school prayer and moments of silent prayer but religious student and community groups must have the same access to school facilities as non-religious groups.

Answer 156

The government may provide assistance to parochial schools so long as the assistance is not used for religious instruction. Further, the government may provide parents with vouchers that they use in parochial schools.

Answer 157

(1) Look for a question involving torts, contracts or property (most commonly); (2) Look for language like remedies, relief, or mentions of a specific remedy; (3) Determine the substantive area(s) of law involved, and the type of problem at issue within that area; (4) Determine whether plaintiff will win (or at least has a good argument); (5) Determine which remedies require discussion: (a) Legal remedies; (b) Restitutionary remedies; (c) Equitable remedies

Answer 158

Legal remedies in tort consist of various forms of **damages**.

Answer 159

Compensatory damages are based on the amount of damage suffered by the plaintiff, and are intended to put the injured party in the position he would have been in had the injury never occurred. To prove damages, there must be **(1)** **causation** , **(2)** **foreseeability** , **(3)** **certainty** , and **(4)** **unavoidability**.

Answer 160

The defendants wrong must have been the **but for cause** of the plaintiffs damages.

Answer 161

The defendants wrong must have **proximately caused** the plaintiffs damagesin other words, plaintiffs damages must have been **foreseeable** at the time of the tortious act.

Answer 162

The damages cannot be **too speculative**. **Past losses** must be established with greater certainty than future losses. A **historical record** helps to provide greater certainty, and often poses a problem in the case of a **new business**. Finally, regarding **future damages** , the plaintiff must show they are **more likely to happen than not** (the all or nothing rule).

Answer 163

The damages must also be unavoidable, such that the plaintiff must take **reasonable steps to mitigate** damages.

Answer 164

Regarding economic damages such as **medical expenses** and **lost earnings** , the basic **certainty rules apply** the plaintiff must establish economic losses with sufficient certainty.

Answer 165

In the case of non-economic losses such as **pain and suffering** and **permanent disfigurement** , the basic **certainty rules** **_do not_** **apply** a jury may award any amount it wishes, subject to proper instructions.

Answer 166

The judgment in a tort suit must be a **single lump sum** payment that will be **discounted to present value** without taking **inflation** into account (except under the **modern** view).

Answer 167

Nominal damages are awarded where the plaintiff suffers **no actual injury** , and serve to **establish or vindicate** the plaintiffs rights. Nominal damages are available in suits for **battery** , **assault** , **false imprisonment** , and **trespass to land**.

Answer 168

Punitive damages are awarded in order to **punish the defendant** , but in order to get punitive damages, a plaintiff must first have been awarded **compensatory, nominal or restitutionary** damages. In order for punitive damages to be available, defendants fault must be **greater than negligence**. Generally, punitive damages are awarded in an amount **relatively proportionate** to actual damages, and the Supreme Court has limited them to a **single digit multiplier of actual damages** unless the conduct or facts are extreme.

Answer 169

Legal restitutionary remedies in tort consist of **(1)** **restitutionary damages** , **(2)****replevin**and**(3)****ejectment** , and are geared towards preventing defendant from being **unjustly enriched**.

Answer 170

Restitutionary damages are calculated based on the value of a **benefit to the defendant** , and are appropriate where the plaintiff suffered no injury though the defendant benefited. While a plaintiff may seek restitutionary damages where compensatory damages are available, he may not be awarded both.

Answer 171

Replevin allows the plaintiff to recover possession of **specific personal property** , and is available where **(1)** **the plaintiff has a right to possession** , and **(2)** there has been a **wrongful withholding by the defendant**. Replevin allows the plaintiff to recover the chattel **_before_** **trial** , but **(1)** the plaintiff must **post a bond** , and **(2)** the defendant can defeat an immediate recovery by posting a **redelivery bond** (which allows the defendant to keep the chattel until after trial). Where replevin is appropriate, the **sheriff** repossesses the property on the plaintiffs behalf, as the plaintiff **cannot resort to self-help**.

Answer 172

Typically, replevin is coupled with damages (compensatory or restitutionary) for the loss of use or benefit to the defendant during the time of detention.

Answer 173

Ejectment allows the plaintiff to recover possession of specific real property, and is available where (1) the plaintiff has a right to possession, and (2) there has been a wrongful withholding by the defendant. Ejectment is available only against a defendant who has possession of property, such as an adverse possessor or holdover tenant. Where ejectment is available, the sheriff ejects the defendant from the property, as the plaintiff cannot resort to self-help.

Answer 174

Typically, ejectment is coupled with damages (compensatory or restitutionary) for the loss of use or benefit to the defendant during the time of detention.

Answer 175

Equitable restitutionary remedies in tort consist of **(1)** **constructive trusts** and **(2)** **equitable liens** and are geared towards preventing defendant from being **unjustly enriched**.

Answer 176

A constructive trust is imposed on improperly acquired property to which **defendant has title**. In essence, defendant serves as **trustee** and must return the property to the plaintiff. However, if a thief **sells** converted property (to which he _does not_ have title) for money (as to which he _does_ obtain title), the injured party may, by tracing and identification, impose a constructive trust on the **money or any property purchased with the money**.

Answer 177

An equitable lien is imposed on improperly acquired property to which **defendant has title**. The property is then subject to an immediate **court-directed sale** , the proceeds of which belong to the plaintiff. If the proceeds of the sale are less than the fair market value of the property when taken, a **deficiency judgment** will issue for the difference, and may be used to satisfy the debt against the defendants other assets. Further, where a thief **sells** converted property (to which he _does not_ have title) for money (as to which he _does_ obtain title), the injured party may, by tracing and identification, impose an equitable lien on the **money or any property purchased with the money**.

Answer 178

In order for a constructive trust or equitable lien to be available, the plaintiffs legal remedy (damages) must be inadequate, such as **(1)** when the defendant is **insolvent** , or **(2)** where the property is **unique** (constructive trust). **Tracing** is permitted, although subsequent **bona fide purchasers** of the property prevail over the plaintiff. The plaintiff will prevail, however, over **unsecured creditors** , and to the extent the plaintiff has a deficiency judgment in connection with an equitable lien, he stands on equal footing with other unsecured creditors.

Answer 179

Where the **property value increases** , the plaintiff should elect for a **constructive trust** (as he is entitled to the appreciation). Where the **property value decreases** , the plaintiff should elect for an **equitable lien** and seek a **deficiency judgment** for the difference. When the defendants property cannot be traced _solely_ to the plaintiffs improperly acquired property, such as where the defendant has **commingled** his own property, **_only_** **an equitable lien** is available.

Answer 180

Equitable remedies in tort consist of **injunctive relief** , wherein a defendant is ordered to do or refrain from doing something.

Answer 181

A temporary restraining order (TRO) may be issued pending a hearing to determine whether a preliminary injunction should issue. For a TRO to issue, there must be **(1)** threat of **irreparable injury** , **(2)** **balancing of the hardships** favoring the plaintiff, **(3)** the **plaintiffs likelihood of success** at trial, and **(4)** **immediate injury**. TRO determinations may be made **ex parte** , meaning notice and an adversarial proceeding is not required, although if there is an opportunity to notify the defendant, the plaintiff must make an **effort to notify in good faith**. TROs are limited to **_10 days_** in state court, and **_14 days_** in federal court, during which time the court must hold a temporary injunction hearing.

Answer 182

A preliminary injunction, which maintains the **status quo** during trial, will issue after an adversarial hearing where there is a showing of a: **(1)** threat of **irreparable injury** , **(2)** **balancing of the hardships** favoring the plaintiff, and **(3)** the **plaintiffs likelihood of success** at trial. Irreparable injury must occur as a result of waiting for a full trial on the merits, the court will consider any hardship suffered by the defendant if an injunction issued, and the court typically imposes a **bond requirement** on the plaintiff to reimburse the defendant in the event the injunction injures him and the plaintiff loses at trial.

Answer 183

A permanent injunction will issue after a trial on the merits where: **(1)** there is **no adequate legal remedy** (e.g., replevin, ejectment or damages will not suffice), **(2)** **enforcement is feasible** , **(3)** **balancing of the hardships** favors the plaintiff, and **(4)** there are **no defenses**.

Answer 184

Replevin may be inadequate because the sheriff may be **unable to recover** the item (e.g., he cannot find or identify it) or the defendant can file a **redelivery bond** and abscond with or destroy the item in the interim.

Answer 185

Ejectment may be inadequate because the sheriff may **refuse to act** (e.g., will not tear down an encroaching structure).

Answer 186

Money damages may be inadequate because they were **too speculative** , the injury is **truly irreparable** , or the plaintiff seeks to avoid a **multiplicity of actions** (i.e., where theres a history of prior litigation between the parties).

Answer 187

A negative injunction is an order to the defendant to **cease doing something**. Typically, a negative injunction poses no enforcement problems.

Answer 188

A mandatory injunction is an order to the defendant to **affirmatively do something**. There may be an enforcement problem, due to the difficulty of court supervision or a concern with effectively ensuring compliance.

Answer 189

The court will balance the benefit to the plaintiff with the hardship to the defendant if relief is granted. To **deny the injunction** , there must be a **gross****disparity**between the detriment to the defendant and the benefit to the plaintiff, and even then there will be**no balancing**if the**defendant acted willfully**. The court will also consider the hardship to the public.

Answer 190

Unclean hands is an available defense only where a plaintiffs alleged improper, unethical or bad faith conduct is **related to the lawsuit** it is not enough that the plaintiff is merely a bad guy in general.

Answer 191

Laches is an **unreasonable delay** by the plaintiff in initiating his claim that results in **prejudice** to the defendant. The period of laches may be shorter, but will never be longer than, the **statute of limitations**. Laches begins to run from the time the **plaintiff learns of the injury**.

Answer 192

Impossibility is a defense where it would be impossible for the defendant to carry out the terms of the injunction.

Answer 193

If the tort is **defamation** or from the **privacy** branch, the court will likely **deny** the injunction on free speech grounds.

Answer 194

Equity will _not_ enjoin a crime

Answer 195

The parties to the case are bound by the injunction, as are **employees and agents acting with notice** , and others acting **in concert with notice**.

Answer 196

Where the court issues an injunction erroneously, a party must nonetheless comply with the terms and later seek to have it modified or resolved in courtwhere a party fails to comply, he loses standing to later challenge it.

Answer 197

The court has both civil and criminal contempt power to ensure compliance with court orders. **Civil contempt** is intended to **coerce** , and includes **monetary fines** and **imprisonment** , so long as the defendant **holds the keys** to the jailhouse (i.e., can ensure freedom by complying). **Criminal contempt** is intended to **punish** , and also includes **monetary fines** and **imprisonment** , although the imprisoned defendant cannot get out for a given period of time.

Answer 198

Injunctive relief is almost always coupled with damages for injuries incurred in the time prior to obtaining the injunction.

Answer 199

Legal remedies in contract consist of **damages**.

Answer 200

Compensatory damages in contract are based on the injury to the plaintiff, in the form of **(1)** **expectation** damages ( **benefit of the bargain** ), **(2)** **consequential** damages, and **(3)** **incidental** damages. To prove damages, there must be **(1)** **causation** , **(2)** **foreseeability** , **(3)** **certainty** , and **(4)** **unavoidability**. Expectation damages represent the benefit the plaintiff expected to receive had the contract been performed, consequential damages are available for related damages that were **foreseeable** at the time of formation, and incidental damages represent certain expenses incurred as a result of the breach (e.g., storage and shipping costs).

Answer 201

Nominal damages are permitted in contract.

Answer 202

Punitive damages are _not_ allowed in contract, and where a defendant acts **willfully** , a plaintiff will often seek to characterize his actions as **fraud** in tort in order to recover punitives.

Answer 203

Liquidated damages are permissible where **(1)** damages are **very difficult to ascertain** at the time of contract formation, and **(2)** the damages provision was a **reasonable forecast** of what the damages would ultimately be. If the amount is **excessive** , it will be **void as a penalty** , and **only actual damages are recoverable**. Where there is a valid liquidated damages provision, though, **only liquidated damages are recoverable**. A clause that provides one can recover **either** actual damages **or** liquidated damages is **invalid**.

Answer 204

Legal restitutionary remedies in contract consist of **(1)** **restitutionary damages** , **(2)** **replevin** , and **(3)** **ejectment** ( **see above** ). **Equitable** restitutionary remedies in contract consist of **(1)** **constructive trusts** and **(2)** **equitable liens** ( **see above** ).

Answer 205

A contract fails after the plaintiff has rendered either partial or complete performance due to breach or unenforceability.

Answer 206

Contracts are typically unenforceable due to **mistake** , lack of **capacity** , the **Statute of Frauds** , or due to **illegality**. Here, the plaintiff can recover the **value of the benefit conferred** on the defendant (i.e., money or services) or can seek to recover property if it is **unique** or the defendant is **insolvent**.

Answer 207

If the plaintiff is the **non-breaching party** , he can recover the value of the benefit conferredeven if the recover is **_greater than the contract_** rateor can seek to recover property if it is **unique** of the defendant is **insolvent**. If the plaintiff is the **breaching party** , under the **traditional view** he cannot recover at all. Under the **modern view** , he can recover the value of the benefit conferred, but the recovery **_cannot be greater than the contract rate_** , and is reduced by any damages suffered by the defendant as a result of the breach.

Answer 208

Equitable remedies in contract consist of **(1)****specific performance**,**(2)****rescission**, and**(3)****reformation**.

Answer 209

Specific performance is a remedy whereby the court orders a defendant to perform the contract. To successfully seek specific performance, a plaintiff must show **(1)** the contract is **valid** i.e., **certain and definite** , **(2)** the **plaintiffs contract conditions have been satisfied** , **(3)** the plaintiff has **no adequate legal remedy** , and **(4)** enforcement is **feasible**.

Answer 210

The plaintiff must demonstrate the contract terms with greater certainty and definiteness than would be the case in an action for money damages at law.

Answer 211

The plaintiff must show that his conditions have been fulfilledi.e., they already performed, are ready and able to perform, or are excused from performing.

Answer 212

If the **seller is the plaintiff** , he _can_ specifically enforce the contract if the **defect is minor** , but _cannot_ enforce the contract if the defect is **major** unless the seller can **cure the defect** by closing. If the **buyer is the plaintiff** , he _can_ specifically enforce the contract even if the defect is **major** , but cannot enforce the contract if the defect is **_very_** **major**. If the court grants specific performance for a **lesser quantity of land** , though, it will **abate the purchase price**.

Answer 213

Land sale contracts sometimes expressly state that time is of the essence and contain a forfeiture clause. Occasionally, a buyer will have partially performed but then makes a late payment, and is thus subject to forfeiture. If the seller wants to keep both the land and the performance rendered to date (i.e., the payments), the buyer may bring an action for specific performance. Because **equity abhors forfeiture** , to avoid such a result the court will order specific performance where: **(1)** the **loss to the seller is small** , **(2)** the **tardiness is de minimis** , **(3)** due to **waiver** i.e., the seller has accepted late payments before, or **(4)** the **buyer would suffer undue hardship**.

Answer 214

The basic alternative to specific performance is money damages, which may be inadequate because **(1)** damages are **speculative** , **(2)** the defendant is **insolvent** , **(3)** **multiple suits** are necessary, or **(4)** the thing bargained for is **unique**.

Answer 215

If property is unique, the plaintiff could not replace the item with money damages. **All real property** is considered uniqueno matter whatand sellers can get specific performance even though all they receive in return is money (which is not unique). Most **personal property** is _not_ considered unique, unless: **(1)** it is **one-of-a-kind** or **very rare** , **(2)** of **personal significance** to the buyer, or **(3)** **other****circumstances** make the chattel unique. Uniqueness is tested as of the time of litigation, not contract formation.

Answer 216

Where a contract contains a liquidated damages clause, money damages are not **de facto** adequatespecific performance may still be available, unless the clause states that **liquidated damages are the** **_only_** **remedy**.

Answer 217

Courts will not specifically enforce **personal services contracts** , because they pose an **involuntary servitude** problem. Courts will, however, specifically enforce **covenants not to compete** so long as **(1)** the services are **unique** , and **(2)** they are reasonable in **geographic and durational scope**.

Answer 218

Defenses include **unclean hands** , **laches** , **unconscionability** (measured at the time of formation, and constituting more than simply a **bad deal** ), **mistake** , **misrepresentation** , and the **Statute of Frauds**.

Answer 219

Where one has rendered **valuable part performance** in reliance on an oral contract involving land, this takes the case out of the Statute of Frauds and specific performance can be granted. Valuable part performance consists in _2 of the following 3_ : **(1)** **payment** , **(2)** **possession** , or **(3)** **valuable improvements**.

Answer 220

Where a court grants rescission, the original contract is considered voidable and rescinded. Grounds for rescission include **(1)** various **defenses to formation** , **(2)** **mutual mistake** , **(3)** **unilateral mistake** , and **(4)** **misrepresentation**.

Answer 221

Defenses to formation include **mistake** , **misrepresentation** , **coercion** , **undue influence** , **lack of capacity** , **failure of consideration** , and **illegality**.

Answer 222

For rescission to be proper, a mutual mistake must go to a **material fact** a mutual mistake as to a **collateral fact** , such as quality, desirability or fitness for a particular purpose, is _not_ grounds for rescission.

Answer 223

Rescission is typically denied in the case of unilateral mistake, unless the **non-mistaken party knows or should have known of the mistake**. Under the **modern view** , rescission may also be granted where the mistaken party would suffer an undue hardship if rescission were denied.

Answer 224

In the case of misrepresentation, so long as the plaintiff can show they actually relied on the misrepresentation, rescission will be granted.

Answer 225

Defenses to rescission include **unclean hands** and **laches**. **Negligence** of the defendant is _not_ a good defense.

Answer 226

A plaintiff must elect his remedies. Where a plaintiff first sues for damages, rescission is not allowed, as the plaintiff has already affirmed the existence of a contract. Where a plaintiff sues first for rescission, however, he may also sue for damages. A plaintiff may also sue for both simultaneously, but must elect the preferred remedy prior to judgment.

Answer 227

If a plaintiff who is entitled to rescission has previously rendered performance on the contract, he can recover restitution in the form of compensation or return of property.

Answer 228

Reformation is the process of changing a written agreement to **conform** to the parties **original understanding**. There must be **(1)** a **valid contract** , **(2)** **sufficient grounds** , and **(3)** **no defenses**.

Answer 229

Reformation will be granted where the parties made a **mutual mistake** , or where one party made a **misrepresentation** (in which case, the rewriting will reflect the expressed intent of the parties). Typically, reformation is _not_ granted in the case of **unilateral mistake** , unless the **non-mistaken party knows of the mistake**.

Answer 230

Defenses to reformation include **unclean hands** and **laches**. **Negligence** of the plaintiff, the **Statute of Frauds** and the **parol evidence rule** are _not_ good defenses.

Answer 231

A unilateral contract is an offer that **expressly requires complete performance** as the **only possible method of acceptance**. The offer must be a reward, prize or contest, or expressly require performance for acceptance.

Answer 232

A bilateral contract includes **all other offers** , wherein the offer is typically silent as to the method of acceptance.

Answer 233

Quasi-contract is an **equitable remedy** not governed by contract. If unfairness would result in a quasi-contractual situation, **restitutionary damages** are available to avoid **unjust enrichment**.

Answer 234

An implied-in-fact contract is formed by **manifestations of assent** other than oral or written language (i.e., conduct).

Answer 235

The common law governs **(1)** **services** contracts, **(2)** **real estate** contracts, and **(3)** **anything** that is not a sale of goods.

Answer 236

Article 2 of the UCC applies to **contracts for the sale of goods**. **Goods** are all things **movable** at the time they are identified as the goods to be sold under the contract. Certain provisions of the UCC apply to merchants, who are those who **regularly deal in goods of the kind sold**.

Answer 237

Where a contract involves a mix of goods and services, courts look to the predominant purpose of the contract to determine which law governs, except that where a contract **divides payment** , the UCC will apply to any sale of goods portion, and the common law to the rest.

Answer 238

A valid contract requires: **(1)** an **offer** , **(2)** an **acceptance** , and **(3)** valid **consideration**.

Answer 239

A contract is a **legally enforceable agreement**.

Answer 240

An offer requires: **(1)** an expression of a **promise, undertaking, or commitment** to enter into a contract; **(2)** where the **terms are certain and definite** ; and **(3)** it is **communicated** to the offeree.

Answer 241

In a **sale of real estate** , where the contract fails to include the **price and description of the land** , the offer is **invalid**. In a **sale of goods** , there is _no_ price requirement, as the court will provide a **reasonable price at the time of delivery**.

Answer 242

Where any of the **material terms** are **vague or ambiguous** , there is no offer. Look for ambiguous words such as appropriate, fair, and reasonable.

Answer 243

A quantity term is **required** for a **sale of goods** contract.

Answer 244

A contract for the sale of goods can state the quantity of goods to be delivered under the contract in terms of the buyers requirement or sellers output. Often, such contracts include language like all, only, exclusively, and solely. A buyer can **increase requirements** so long as the increase is **in line with prior demands** there may not be a tender of or demand for a quantity **unreasonably disproportionate** to any estimate or normal requirements.

Answer 245

An advertisement or price quotation is _not_ an offer, unless: **(1)** an advertisement can be a unilateral offer if it is offered as a **reward** ; **(2)** an advertisement can be an offer where it **specifies quantity** and **expressly indicates who can accept** ; or **(3)** a **price quotation** can be an offer if **sent in response to an inquiry**.

Answer 246

An offer generally creates the power of acceptance in the person to whom the offer was made. An offer cannot, however, be accepted if it has been terminated. There are _4 methods_ of termination: **(1)** **lapse** of time; **(2)** **death** of a party prior to acceptance; **(3)** **words or conduct of the offeror** ; and **(4)****words or conduct of the offeree**.

Answer 247

An offer may terminate after the time stated or, if not, within a reasonable time.

Answer 248

Generally, **death or incapacity** of either party after the offer, but before acceptance, terminates the offerexcept in the case of an **irrevocable offer**.

Answer 249

Generally, an offer may be revoked by the offeror any time prior to acceptance, and is effective upon receipt by the offeree. An offer may be revoked by: **(1)** a **later unambiguous statement** by the offeror to the offeree of an unwillingness or inability to contract; **(2)** **later unambiguous conduct** by the offeror indicating an unwillingness or inability to contract, of which the **offeree is aware**. Making multiple offers, however, is _not_ a revocation. Further, while offers can generally be freely revoked, there are _4 exceptions_ : **(1)** an **option contract** , **(2)** a **merchants firm offer** , **(3)** **detrimental reliance** , and **(4)** **part performance of a unilateral contract**.

Answer 250

An offer cannot be revoked if the offeror has made an offer and: **(1)** **promised not to revoke** , and **(2)** that promise is **supported by consideration**. A rejection of an offer in an option contract scenario _does not_ terminate the offer, unless the offeror has **detrimentally relied** on the rejection.

Answer 251

Under the UCC, where **(1)** a **merchant****(2)**offers to sell goods in a**signed writing**and**(3)**the writing gives assurances it**will be held open**, the offer is _not_ revocable**during the time stated**, or if no time is stated, for a**reasonable time**but in _no_ case can the period**exceed 3 months**.

Answer 252

An offer cannot be revoked if a party has relied in a way that is: **(1)** **reasonably foreseeable** , and **(2)** **detrimental**.

Answer 253

The start of performance pursuant to an offer to enter into a unilateral contract makes that offer irrevocable for a reasonable time to complete performance. While the offer remains revocable where a party has made **mere preparations** (but look for reliance), once the party begins performing it becomes irrevocable.

Answer 254

An offeree may, by words or conduct, directly or indirectly reject an offer, which is effective upon receipt by the offeror. Indirect forms of rejection include: **(1)** a **counteroffer** , **(2)** a **conditional acceptance** , or **(3)** adding **additional terms** (rejection under common law).

Answer 255

A counteroffer generally terminates the original offer and creates a **new offer**. Thus, where a counteroffer has been made, there is no express contract unless that counteroffer has been accepted. Mere bargaining, however, does not constitute a counteroffer. As with rejections, counteroffers do _not_ terminate option contracts.

Answer 256

A conditional acceptance terminates the original offer, and most often occurs where one party accepts and includes language like if, only if, provided, so long as, but, or on condition that. Under the **common law** , a conditional acceptance becomes a **counteroffer** that can be accepted by conduct. Under the **UCC** , a conditional acceptance is a **rejection** , though subsequent conduct can create a contract.

Answer 257

Additional terms in a purported acceptance implicate: **(1)** the **mirror image rule** under the common law, and **(2)** the **battle of the forms** under the UCC.

Answer 258

A response to an offer that includes additional or different terms is treated like a **rejection** and a **counteroffer** , rather than an acceptance.

Answer 259

Additional or different terms are _not_ a rejection, but rather a **reasonable expression of acceptance**.

Answer 260

Additional or different terms in an acceptance are **mere proposals** and the **terms of the offer govern**.

Answer 261

Additional terms become part of the contract unless they: **(1)** **materially alter** the original terms of the contract; or **(2)** the offeror **has objected** or **objects within a reasonable time** after notice, or **(3)** the offer **expressly limits** acceptance to the terms of the offer.

Answer 262

There is a split of authority over whether different terms become part of the contract. Some courts treat different terms like additional terms, but other courts find that different terms are **knocked out** and replaced by UCC gap fillers.

Answer 263

(1) Price : Reasonable price at time of delivery; **(2) Place of Delivery** : Sellers place of business; **(3) Time for Shipment or Delivery** : Within a reasonable time; **(4) Time for Payment** : At the time and place at which buyer receives goods; **(5) Assortment** : Assortment is at buyers option

Answer 264

Acceptance is a manifestation of assent to the terms of an offer.

Answer 265

The offeror can control the method of acceptance and whether the offeree must provide notice it has accepted by performance, although an offeree must generally communicate acceptance. An offer can typically be accepted only by **(1)** a **person who knows** about the offer at the time she accepts, or **(2)** the **person to whom the offer was made**. Offers are _not_ generally **assignable** , although options can be assigned unless the option provides otherwise.

Answer 266

Generally, the start of performance is acceptance, as beginning performance is treated as an **implied promise to perform** such that there is a bilateral contract. The start of performance is _not_ a valid acceptance of an offer to unilateral contract, in which case completion of performance is required.

Answer 267

Generally, all communications **other than acceptance** are effective upon receipt. Under the **Mailbox Rule** , though, an acceptance is generally effective **when mailed** , except that where a rejection is mailed _before_ an acceptance is mailed, neither is effective until receipt. Where an acceptance is mailed _before_ a rejection, the Mailbox Rule applies unless the rejection arrives _first_ and the offeror **detrimentally relies** on it. The Mailbox Rule _cannot_ be used to meet an **option deadline**.

Answer 268

Generally, where a seller ships non-conforming goods, it acts as an **acceptance and breach** , except where the seller ships such goods as an **accommodation** , in which case it constitutes a **counteroffer** (and **no** **breach** ).

Answer 269

Consideration requires a **bargained-for exchange of legal value** (i.e., a benefit to the promisor or a detriment to the promisee).

Answer 270

A bargained-for exchange requires that the promise induce the detriment and the detriment induce the promise.

Answer 271

Generally, courts _do not_ inquire into the **adequacy or fairness** of the consideration, although sham or token consideration is insufficient.

Answer 272

If **only****one party is bound to perform** , the promise is illusory and unenforceable.

Answer 273

Generally, past or moral consideration is inadequate, except for _2 situations_ : **(1)** where a past obligation is unenforceable due to a technical defense (SOL), that obligation is enforceable if a **new promise** is made **in writing** or is **partially performed** ; and **(2)** if a past act benefited the promisor and the promisee performed at the promisors **request** or in response to an **emergency** , a **subsequent promise** to pay for that act is enforceable.

Answer 274

Generally, doing what you are already legally obligated to do is **_not_** **new consideration** for a new promise to pay more **new consideration** is required. There are _3 exceptions_ : **(1)** there is **an addition to or change** **in** the performance; **(2)** there is an **unforeseen difficulty so severe** as to excuse performance; or **(3)** there is a **third-party** promise to pay.

Answer 275

Under the UCC, new consideration is _not_ required to modify a sale of goods contractrather, a **good faith** standard governs changes to existing contracts.

Answer 276

Where a debt is **due and undisputed** , part payment is _not_ valid consideration for release. Where, however, the debt is either **disputed** or **not yet due** , part payment is valid consideration for release.

Answer 277

A promise is legally enforceable despite a lack of consideration if there is a consideration substitute: **(1)** a written promise to satisfy an obligation for which there is a legal defense; or **(2)** **promissory estoppel** (detrimental reliance).

Answer 278

Where one executes a written promise to satisfy an obligation for which there is a legal defense, the agreement is enforceable without consideration. For example, where D owes C $1,000, and a legal action to collect the debt is barred by the SOL, D may write C to say I know I owe you $1,000I will pay you $600. There is no new consideration, but C can enforce the promise.

Answer 279

A promise is enforceable if necessary to prevent injustice if: **(1)** the promisor should reasonably **expect to induce action or forbearance****(2)**of a**definite and substantial character**, and**(3)**such action or forbearance**is in fact induced**.

Answer 280

Defenses to enforcement of a contract include: **(1)** lack of consideration or a consideration substitute; **(2)** lack of capacity; **(3)** the Statute of Frauds; **(4)** illegality; **(5)** public policy; **(6)** misrepresentation; **(7)** non-disclosure; **(8)** duress; **(9)** undue influence; **(9)** unconscionability; **(10)** ambiguity; and **(11)** mistake of fact.

Answer 281

Persons without legal capacity to contract include: **(1)** **infants** (i.e., under the age of 18); **(2)** **mental incompetents** (persons who lack the ability to understand an agreement); and **(3)** **intoxicated persons** (if the other party has reason to know).

Answer 282

Only one who entered a contract without capacity but later gains it (e.g., an infant who reaches age 18) has a **right to disaffirm** the contractthe other party cannot. Where an infant reaches the age of majority, he can **affirm** the contract expressly or by failing to disaffirm the contract within a reasonable time. A person without capacity is **legally obligated** , however, to pay for **necessaries** such as food, clothing, medical care, or shelter, but their liability is based in **quasi-contract**.

Answer 283

Under the Statute of Frauds, certain agreementsat least the material termsmust be evidenced by a **writing signed by the parties to be bound**. This is designed to prevent **fraudulent claims** as to the existence of a contract by requiring the claimant to provide some proof (other than testimony) of the contract.

Answer 284

There are _4 types of contracts_ within the Statute of Frauds: **(1)** **suretyship** contracts (promises to answer for anothers debts); **(2)** service contracts **not capable of performance within a year** ; **(3)** transfers of **interests in real estate** ; and **(4)** **sales of goods for $500** or more.

Answer 285

A suretyship agreement is _not_ merely a promise to pay anothers debt, but rather a promise to pay anothers debt **if they fail to do so** (i.e., a guarantee). Although such agreements must generally be in writing, the **main purpose exception** provides that where the main purpose of the obligation served the promisors own interest, the contract is **_not_** **within the Statute of Frauds**.

Answer 286

Where the contract: **(1)** specifies a time period of performance longer than one year, or **(2)** specifies an end-date more than one year from the date of contract, the **Statute of Frauds applies**. However, where the contract: **(1)** involves a contract **for life** , or **(2)** does **not specify a time** (as a task is inherently capable of performance within a yearno matter what), the **Statute of Frauds** **_does not_** **apply** (and the agreement need not be in writing).

Answer 287

Transfers of real estate must generally be in writing, including: **(1)** leases for more than a year, **(2)** easements of more than a year, **(3)** fixtures, **(4)** mineral or structures if they are to be severed by the buyer, and **(5)** mortgages. **Leases of a year or less** , however, _need not_ be in writing.

Answer 288

While contracts for the sale of goods for $500 or more must generally be in writing, a **merchants confirmatory memo** will suffice. If the contract is between merchants, and one party, within a reasonable time after an oral agreement is made, sends to the other party a **written confirmation** of the agreement, that satisfies the Statute of Frauds and **binds the sender**. It also binds the **recipient** if: **(1)** he has **reason to know of the confirmations contents** , and **(2)** **does not object in writing** within _10 days_ of receipt.

Answer 289

The Statute of Frauds may be satisfied by: **(1)** **performance** , **(2)** a **writing** , **(3)** **judicial admission** , or **(4)** **estoppel**.

Answer 290

Performance may satisfy the Statute of Frauds, although the requirements differ whether the contract is for **transfers of real estate** , **services** , or **sale of goods**.

Answer 291

If the **seller conveys** to the purchaser, the seller _can_ enforce the purchasers promise to pay. Conversely, the **purchaser** can specifically enforce a land contract where _at least 2_ of the following requirements are met: **(1)** **valuable improvements** to the property, **(2)** **payment** (in whole or part), and/or **(3)** **possession**.

Answer 292

In a service contract, **full performance** by either side satisfies the Statute of Frauds, but **part performance** _does not_ .

Answer 293

Generally, **part performance** of a contract for the sale of goods satisfies the Statute of Frauds, **but only to the extent of the part performance**. If the goods are delivered, there is no valid Statute of Frauds defense. If they goods have _not_ been delivered, the Statute of Frauds is a valid defense.

Answer 294

If the contract is for the sale of specially manufactured goods, the Statute of Frauds is satisfied as soon as the seller makes a **substantial beginning** (i.e., the seller has done enough work to make it clear he is working on something custom made or made-to-order).

Answer 295

The writing must be signed by the party to be charged (i.e., the party asserting there was no such agreement).

Answer 296

At common law, a writing satisfies the Statute of Frauds if **all material terms** are included (i.e., who and what), and the person to be charged **signed** it.

Answer 297

Under the UCC, a writing must simply indicate there is a contract for the sale of goods and contain a quantity term.

Answer 298

If a defendant asserting a Statute of Frauds defense admits in a **pleading** or in **testimony** that he entered the agreement with the plaintiff, the Statute of Frauds is satisfied.

Answer 299

A plaintiffs reliance on a defendants oral promise can estop the defendant from asserting a Statute of Frauds defense (in some jurisdictions).

Answer 300

Sometimes the law requires one to have written authorization in order to execute a contract for another (e.g., equal dignity rule in agency relationship).

Answer 301

Sometimes there is no legal requirement of written evidence of an alleged modification of a written contractthe new deal (with the alleged change) may not fall within the Statute of Frauds (e.g., price of goods now lower than $500). If the new deal would be within the Statute of Frauds, though, it **must be in writing**.

Answer 302

Under common law, contract provisions requiring that all modifications be in writing are **_not effective_** and void. Under the UCC, though, such provisions are effective (unless waived).

Answer 303

If the subject matter or consideration is illegal, the agreement is _not_ enforceable.

Answer 304

If the subject matter is legal, the agreement is **enforceable** if the plaintiff did not have reason to know of the defendants illegal purpose, but **voidable** by the unknowledgeable party.

Answer 305

An **exculpatory agreement** that exempts intentional or reckless conduct from liability, or a **covenant not to compete** without a reasonable need or reasonable time and place limits, might be invalid as against public policy.

Answer 306

If a party induces another to enter a contract by making a **knowing false assertion of fact** , the contract is **voidable** by the innocent party if she **justifiably relied** on the fraudulent misrepresentation. Even if a misrepresentation is not fraudulent, the contract is **voidable** by the innocent party if they **justifiably relied** on a **material** misrepresentation.

Answer 307

There is no duty to disclose information to another, but where nondisclosure is wrongful (e.g., the parties have a fiduciary-like relationship, or one party actively conceals) the innocent party can rescind.

Answer 308

Contracts induced by duress are **voidable** and can be rescinded, and typically involve procuring assent by making an **improper threat** merely taking advantage of anothers economic need, however, is _not_ duress.

Answer 309

Contracts induced by undue influence are **voidable** and can be rescinded. Undue influence requires: **(1)** **undue susceptibility** to pressure by one party, and **(2)** **excessive pressure** by the other party.

Answer 310

A court may refuse to enforce all or part of an agreement if: **(1)** there was **unfair surprise** , (procedural) or **(2)** **oppressive terms** (substantive), as tested at the time of contracting. An unfair price alone is not sufficient. Rather, look for inconspicuous **risk-shifting provisions** , **contracts of adhesion** , **exculpatory clauses** or **limitations on remedies**.

Answer 311

There is **_no contract_** where: **(1)** the parties use a **material term** that is susceptible to **at least 2 reasonable interpretations** ; **(2)** each party attaches a **different meaning** to the term; and **(3)** **neither party knows or has reason to know** the term is open to the different interpretations.

Answer 312

If _both_ parties are mistaken **about existing facts** , the contract may be voidable if: **(1)** the mistake concerns a **basic assumption** of the contract; **(2)** the mistake has a **material effect** on the agreed-upon exchange; and **(3)** the party seeking avoidance **did not assume the risk** of the mistake.

Answer 313

If only _one_ of the parties is mistaken about facts relating to the agreement, the mistake will _not_ prevent formation of a contract unless the non-mistaken party **knew or had reason to know of the mistake** made by the other party.

Answer 314

When the parties to a contract express their agreement in a writing with the intent that it **embody the final expression of their bargain** (i.e., an integration), **any other expressions** , either written or oral, **made prior** to the writing, and any **oral expressions contemporaneous** with the writing, are **inadmissible** to vary the terms of the writing under the parol evidence rule. The reason for the rule is that the final written iteration of a deal is more reliable than anything said or written earlier.

Answer 315

A written agreement that the court finds is the _final_ agreement

Answer 316

Written and final agreement, but _not_ complete

Answer 317

Written, final and complete agreement

Answer 318

A contract clause such as This is the complete and final agreementpersuasive evidence the agreement is a complete integration

Answer 319

Oral or written words of a party prior to integration

Answer 320

Whether the writing is a complete or partial integration, evidence of an earlier agreement is _not admissible_ for the purpose of contradicting or changing the terms of a written contract.

Answer 321

A court may consider evidence of such terms for the **limited purpose** of determining whether there was a mistake in integration.

Answer 322

Whether the writing is a complete or partial integration, the parol evidence rule _does not_ prevent a court from admitting evidence of earlier words of the parties for the **limited purpose** of determining whether there is a defense to enforcement (e.g., misrepresentation, fraud, duress).

Answer 323

Whether the writing is a complete or partial integration, the parol evidence rule does not prevent a court from admitting evidence of earlier agreements to **resolve ambiguities** in the contract.

Answer 324

The parol evidence rule prevents a court from admitting evidence of earlier agreements as a source of consistent, additional terms unless it finds: (1) the agreement was only a partial integration; or (2) the additional terms would ordinarily be in a separate agreement.

Answer 325

If a party asserts that there was an oral agreement that the written contract would not become effective until a condition occurred, _all_ evidence of the understanding **may be offered**.

Answer 326

The rule is generally the same, except a party can seek to add **consistent additional terms** unless: **(1)** there is a **merger clause** ; or **(2)** the courts find the contract was intended to be the **complete and exclusive statement** of the agreement. However, a contracts written terms may be **explained or supplemented** by: **(1)** **course of dealing** , **(2)** **usage of trade** , and **(3)** **course of performance**.

Answer 327

Conduct can be a source of contract terms, although words are more important than conduct. In assessing conduct, courts look to course of performance, then course of dealing, then to custom and usage to explain words in the contract or fill gaps.

Answer 328

Same people, same contractin an installment contract, look to the parties performances in prior installments.

Answer 329

Same people, different but similar contract.

Answer 330

Different but similar people, and different but similar contract.

Answer 331

If the seller is a **merchant** , the risk of loss passes to the buyer **when she takes physical possession** of the goods. If the seller is _not_ a merchant, the risk of loss passes to the buyer **upon tender of delivery** the seller must give the buyer notice to enable her to take possession, and tender must occur at a reasonable hour.

Answer 332

FOB is always followed by a location. The risk of loss passes to the buyer once the goods reach the named location, and the seller bears the risk and expense of getting the goods to that location.

Answer 333

Generally used only when goods are shipped by boat. Risk of loss passes to buyer once goods are delivered to the dock.

Answer 334

These mean the price in the contract includes the price of goods, the cost of shipping them to the buyer, and (in CIF contracts) the cost of purchasing insurance for the buyers benefit. These contracts are _always_ shipment contracts.

Answer 335

If the risk of loss is on the **buyer** , he must pay the full contract price. If the risk of loss is on the **seller** , the buyer is _not_ liable and the seller may be liable for non-delivery. As to the risk of loss, look to the following to make a determination.

Answer 336

First, the agreement of the parties controls.

Answer 337

A breaching party is liable for an uninsured loss even where the breach is unrelated to the problem (e.g., late delivery of goods, and then they are destroyed).

Answer 338

The risk of loss shifts from the seller to the buyer at the time the seller completes its delivery obligations (look to whether its a shipment or destination contract).

Answer 339

If the seller is a merchant, the risk of loss shifts to the buyer on buyers receipt of the goods. If the seller is _not_ a merchant, the risk of loss shifts to the buyer when the seller tenders the goods.

Answer 340

Warranties of quality include: **(1)** **express** **warranties** ; **(2)** the **implied warranty of merchantability** , and **(3)** the **implied warranty of fitness for a particular purpose**.

Answer 341

Look for words that promise, describe or state facts, as well as any samples or modelsdistinguish it from general sales talkand determine whether such promises, etc. form part of the **basis of the bargain**.

Answer 342

When any person buys goods from any **merchant** (one who deals in goods of the kind), there is an implied warranty that the goods are **fit for the ordinary purposes for which such goods are used**.

Answer 343

Where **(1)** any seller has **reason to know the particular purpose** for which the goods will be used and that the **buyer is relying** on the **sellers skill and judgment** to select suitable goods, and **(2)** the **buyer in fact relies** , the seller warrants the goods are **fit for the particular purpose**.

Answer 344

The statute of limitations on warranties of quality is _4 years_ , and generally starts running when **tender of delivery is made** , _not_ when the buyer learns the product is defective.

Answer 345

If the plaintiff did not buy the goods from the defendant, there may be a problem with privity, although it varies state to state.

Answer 346

If the buyer has examined the goods **before acceptance** , there are _no_ implied warranties as to defects that would be **obvious upon examination** (although express warranties remain in effect).

Answer 347

Cannot generally be disclaimed.

Answer 348

The implied warranties of merchantability and fitness for a particular purpose can be disclaimed by: **(1)** **conspicuous** language of disclaimer (mentioning merchantability), or **(2)** language like **as is** or **with all faults** (need not be conspicuous).

Answer 349

Any limitations on remedies do not eliminate warranties, but simply limit or set the recovery for any breach thereof. A person _can_ limit remedies even for express warranties, though any limit may not be **unconscionable**. Such a limitation is prima facie unconscionable if it limits damages for personal injury caused by a breach of warranty on consumer goods.

Answer 350

A partys basic duty at common law is to **substantially perform** all that is called for in the contract.

Answer 351

UCC Article 2 requires a **perfect tender** the delivery and the conditions of the goods must be exactly as promised in the contract. A less than perfect tender by the seller generally gives the buyer the option to: **(1)** **reject** all the goods, **(2)** **accept** the goods, or **(3)****accept some and reject the rest**of the goods, so long as the buyer acts in**good faith**.

Answer 352

In non-carrier cases, unless the contract provides otherwise, the price is due **concurrently with tender of delivery**.

Answer 353

In carrier cases, the price is due only at the **time and place the buyer receives** the goods. In a **shipment contract** , the price is due when the goods are **put in the hands of the carrier**. In a **destination contract** , the price is due when the goods **reach the named destination**.

Answer 354

In installment contracts, the seller may demand payment **for each installment** if the price can be apportioned.

Answer 355

A buyer has a right to inspect before payment.

Answer 356

If a seller fails to delivery a perfect tender, the buyer has the option to: **(1)** **reject** all the goods, **(2)** **accept** the goods, or **(3)****accept some and reject the rest**of the goods, so long as the buyer acts in**good faith**, and in any case**sue for damages**. However, a buyer must take reasonable care of the rejected goods. Further, a buyers ability to reject is limited by:**(1)**the sellers ability to**cure**;**(2)**the fact that it is an**installment contract**; or**(3)****acceptance**.

Answer 357

In some instances, a seller who fails to make a perfect tender has a second chance, or an option to cure. A seller does not _always_ have such an opportunity, however, and a buyer _cannot_ compel the seller to cure.

Answer 358

If the buyer has rejected goods because of defects, the seller may cure within the time originally provided for performance by giving **reasonable notice** of his intention and making a **new tender of conforming goods** , which the buyer _must_ accept.

Answer 359

Only in limited situations does the seller have a right to cure beyond the original contract time. Where a buyer rejects a tender of nonconforming goods the seller **reasonably believed** would be acceptable **with or without money allowance** , the seller has an opportunity to give **reasonable notice** and make a **new tender of conforming goods** within a **further reasonable time**. A seller may have such grounds (i.e., a reasonable belief) based on: **(1)** **trade practices** or **prior dealings** , or **(2)** the seller **could not have known** of the defect despite proper business conduct.

Answer 360

A buyers right to reject goods in an installment contractwhere there is more than one deliveryis more limited. The buyer has a right to reject only if the nonconformity **substantially impairs** the value of **that installment** and **cannot be cured**. The whole contract is breached only if the nonconformity **substantially impairs** the value of the **entire contract**.

Answer 361

Where a buyer accepts the goods, he _cannot_ later reject them, although **payment without an opportunity for inspection** is _not_ acceptance. However, **(1)** a buyers **rejection must be timely** failure to object after a reasonable time is an acceptance, and **(2)** if the buyer keeps the goods without objection for a sufficient period of retention (e.g., one month), he has **impliedly accepted**.

Answer 362

One goods are accepted, a buyers power to reject the goods is generally terminated and the buyer must pay the price less damages resulting from the sellers breach. Under limited circumstances, a buyer may revoke an acceptance, which has the effect of a **rejection**. A buyer may revoke her acceptance if the goods have a defect that **substantially impairs** their value to her and: **(1)** she accepted them on the **reasonable belief the defect would be cured** and it has not been; or **(2)** she accepted them because of the **difficulty of discovering defects** or because of the **sellers assurance that the goods conformed**.

Answer 363

Revocation of acceptance must occur: **(1)** **within a reasonable time** after the buyer discovers or should have discovered the defects; and **(2)** **before any substantial change in the goods occurs** that is not caused by the defect.

Answer 364

Where one party does not fulfill their end of the bargain, the non-breaching party is excused from performance. Under the **common law** , the breach must be **material** a minor breach may suspend the duty of performance, but does not excuse it.

Answer 365

Anticipatory repudiation occurs where the promisor, prior to the time set for performance of his promise, **unambiguously indicates** he will not perform when the time comes. The repudiation must consist of an **unambiguous statement or conduct** , and the contract must still be an **executory bilateral** contract, still (i.e., there are unperformed duties on each side). Anticipatory repudiation by one party excuses the other partys duty to perform, and the non-breaching party has _four options_ : **(1)** treat it as a **total repudiation** and sue immediately; **(2)** **suspend his own performance** and wait to sue until the performance date; **(3)** treat the repudiation as an **offer to rescind** and treat the contract as discharged; or **(4)** ignore the repudiation and **urge the promisor to perform** (which _does not_ waive the repudiation).

Answer 366

A party who has anticipatorily repudiated may withdraw his repudiation so long as there has been **no material change in position** by the other party and the other party has not otherwise indicated she considers the **repudiation final**. If timely retracted, the duty to perform is re-imposed, but performance can be delayed until adequate assurance is provided.

Answer 367

Insecurity about the other partys performance occurs where a partys **words or conduct cast doubt** upon their intent to perform, but fall short of an unambiguous statement amounting to anticipatory repudiation. If there are **reasonable grounds for insecurity** , the other party may, in writing: **(1)** **demand adequate assurance** , and **(2)** **if commercially reasonable, suspend performance** until such assurance is forthcoming. If such assurance is _not_ forthcoming, the party seeking assurance is excused from performing and may treat the other partys failure as a repudiation. As above, a party can retract the repudiation but must communicate the retraction to the other party.

Answer 368

If a promisor has an absolute duty to perform that they failed to discharge, this failure amounts to a breach of the contract. The non-breaching party must show that she is willing and able to perform.

Answer 369

Under the UCC, tender must be perfect.

Answer 370

Under the common law, damages can be recovered for _any_ breach, including a **minor breach**. However, counterperformance is excused only in the event of **material breach** , in which case the non-breaching party may pursue any remedy available. Whether a breach is material is a **question of fact** if there is **substantial performance** , the breach is not material (and vice versa).

Answer 371

Generally, a late performance is not a material breach if the performance is rendered within a reasonable time. However, if timely performance is essential, failure to perform timely may constitute a material breach.

Answer 372

In a divisible contract, the breaching party can recover in contract for substantial performance of a divisible part even though they breached the entire contractlook to whether the price is stated as a lump sum or on a per performance basis.

Answer 373

If a contract is divisible and a party performs one of the units of the contract, he is entitled to the agreed-upon equivalent for **that unit** even if he fails to perform the other units. A contract is divisible if: **(1)** performance of **each party** is divided into **two or more parts** ; **(2)** the number of parts due from each party is the **same** ; and **(3)** performance of each part must be the **quid pro quo** of the other.

Answer 374

In installment contracts, the priceif it can be apportionedmay be demanded for **each lot** unless a contrary intent appears.

Answer 375

An express condition is an **explicit contractual provision** providing that a party who is bound does not come under a duty to perform **unless and until some specific condition occurs**. An express condition is typically created by words such as if, only if, provided that, so long as, subject to, in the event that, unless, when, until, and on the condition that.

Answer 376

Generally, **strict compliance** is required for satisfaction of a condition, except in the case of **personal satisfaction** of a party or third-party, in which any dissatisfaction must be **honest and in good faith**. If the condition pertains to **mechanical fitness, utility or marketability** , it must satisfy a **reasonable person** standard (i.e., the promisors personal dissatisfaction is irrelevant).

Answer 377

If the person protected by or benefiting from the express condition **waives the condition** (which can be implied), and the other party **detrimentally relies** , the waiving party is estopped from enforcing the condition.

Answer 378

If the person protected by the express condition **wrongfully hinders or prevents** the occurrence of the condition, his performance is _not_ excused.

Answer 379

A condition precedent is a condition that excuses performance until and unless they occur.

Answer 380

A condition subsequent is a condition that occurs after the start of performance and excuses performance.

Answer 381

Rescission occurs where both parties agree to cancel the contract prior to completion of performanceif the work has been completed, rescission is not legally enforceable.

Answer 382

An accord is an agreement by the parties to an already existing obligation to accept a **different performance** in **satisfaction** of the accord that discharged the original contract. The different performance cannot consist of less of the same thing. Once the new agreement is performed, performance of the original obligation is excused. If the accord is not performed, the other party can recover on **either the original obligation or the accord**.

Answer 383

Under the **majority view** , partial payment of an original debt is a **valid accord** if there is a **bona fide dispute** as to the claim or there is otherwise some **alteration** , even if slight, to the debtors consideration.

Answer 384

Where a claim is **uncertain** or subject to a **bona fide dispute** , an accord and satisfaction is accomplished by a **good faith tender and acceptance** of a check that **conspicuously** states its tendered in full satisfaction of the debt.

Answer 385

A modification is an agreement by the parties to an existing obligation to accept a different agreement in satisfaction of the existing obligation.

Answer 386

A novation is an agreement by **both parties to an existing contract** , as well as a **new party** , to the substitution of a new party. A novation requires: **(1)** a **previous** **valid contract** ; **(2)** an **agreement** among all parties; **(3)** the **immediate extinguishment** of contractual duties between the original parties; and **(4)** a **valid****new contract**.

Answer 387

A novation requires the agreement of both parties to the original contract and excuses the replaced party from liability, whereas a delegation does _not_ require the agreement of both parties and does not excuse the original party from liability.

Answer 388

Under the **common law** , destruction of the subject matter would implicate the doctrine of **impossibility**. Under the **UCC** , though, one would first determine if one party bears the risk of loss. If the risk of loss is on the **buyer** , the buyer must pay for the goods. If the risk of loss is on the **seller** , the buyer is not obligated to pay and his ability to receive damages depends on the facts.

Answer 389

Where the nonoccurrence of an unanticipated or extraordinary event was a **basic assumption** of the parties in making the contract and **neither party assumed the risk** , contractual duties may be discharged.

Answer 390

Contractual duties will be discharged if it is **objectively impossible** to perform. In the case of **new construction** , if the building is destroyed during construction, the **parties duties are not discharged** but most courts will excuse the contractor from meeting the original deadline. In the case of a **remodel or repair** , the parties duties would be discharged.

Answer 391

Performance is impracticable where the party to perform has encountered: **(1)** **extreme and unreasonable** difficulty and/or expense; and **(2)** its nonoccurrence was a **basic assumption** of the parties.

Answer 392

If a sellers performance becomes impossible or impracticable, the seller is discharged **only to the extent of the impossibility or impracticability**. Events sufficient to discharge the sellers duty include a shortage of raw materials or crops, but mere increases in costs are **rarely sufficient** (unless they change the character of the contract).

Answer 393

Frustration exists where the **purpose of the contract** has become **valueless** by virtue of a **supervening event** through no fault of the party seeking discharge. To establish frustration, the party seeking discharge must show: **(1)** there is some **supervening act or event** ; **(2)** at the time of contracting, the parties **did not reasonably foresee** the event; **(3)** the **purpose** of the contract has been completely or almost **destroyed** ; and **(4)** **both parties** realized the purpose of the contract at the time of contracting.

Answer 394

Generally, death does _not_ discharge contractual duties (because they can be delegated), unless the party is **special** (i.e., necessary or provider of unique services), in which case the decedents performance is excused by **impossibility**.

Answer 395

If a later law renders **performance** of a contract illegal, the parties performance is excused due to **impossibility**. If a later law renders the **mutually understood purpose** of the contract illegal, performance is excused due to **frustration**.

Answer 396

Specific performance is an equitable remedy, and is unavailable if there is an adequate remedy at law or any of following defenses exist: **(1)** **unclean hands** , **(2)** **laches** , **(3)** or sale to **bona fide purchaser**.

Answer 397

Land is always unique, so specific performance is likely available

Answer 398

Generally, there is _no_ specific performance, unless the goods are **unique** (e.g., antiques, art, custom-made goods, etc.)

Answer 399

There is _no_ specific performance, but possibly injunctive relief to prevent someone from working for a competitor.

Answer 400

A covenant not to compete is enforceable only if: **(1)** the services are **unique** ; **(2)** the covenant is **reasonable in geographic scope and duration** ; and **(3)** the covenant **does not harm the public**.

Answer 401

A seller may reclaim goods from a buyer only where: **(1)** the buyer was **insolvent** at the time it received the goods; **(2)** the seller demands return of the goods **within 10 days** of receipt (or, if the buyer expressly in writing represented solvency before delivery, within a reasonable time); and **(3)** the buyer **still has the goods** at the time of demand.

Answer 402

Where a buyer has made at least **part payment** of identified goods and the seller **has not delivered them** , the buyer may **replevy** the goods where: **(1)** the seller becomes **insolvent** within 10 days after receiving the buyers first payment; or **(2)** the goods were purchased for **personal, family or household purposes**.

Answer 403

If a buyer is **unable to cover** after reasonable effort, he may replevy undelivered, identified goods from the seller.

Answer 404

Money damages are intended to compensate the plaintiff, _not_ punish the defendant.

Answer 405

Persons who contract expect the other party _not_ to breach, thus expectations damages protect their reasonable expectation by giving a party the benefit of the bargain.

Answer 406

[_Fair Market Value If Perfect Fair Market Value as Delivered_], or [_Cost of Repair_]

Answer 407

[_Market Price at Time of Discovery of Breach Contract Price_], or [_Reasonable Cover Price Contract Price_]

Answer 408

[_Contract Price_]

Answer 409

[_Contract Price Market Price at Time of Delivery_], or [_Contract Price Resale Price_]

Answer 410

[_Contract Price_]

Answer 411

[_Provable Lost Profits from Sale_]

Answer 412

Incidental damages are _always_ recoverable by a **non-breaching buyer or seller** , and consist of the costs incurred in dealing with the breach (e.g., storing rejected goods or finding a replacement in a services contract).

Answer 413

Consequential damages are recoverable _only_ by the **non-breaching buyer** , and must be **foreseeable**. Damages are limited to those arising from the plaintiffs special circumstance, and to situations in which the defendant had a reason to know of these special circumstances at the time of contracting.

Answer 414

One may not recover for damages that could have been avoided **without****undue burden**. The**plaintiff bears the burden**of demonstrating that certain damages were avoidable. To properly mitigate, a party must**stop performance**one he learns of the other partys breach (but has a right to continue work if stopping will increase damages), and cannot turn down other**comparable opportunities**.

Answer 415

Uncertain damages are not recoverable, and are often problematic in cases involving **new businesses**. **Reliance damages** are a good alternative, however, where an expectation is too speculative.

Answer 416

If **(1)** damages were **difficult to estimate** at the time the contract was made, and **(2)** the liquidated damages provision is a **reasonable forecast** of compensatory damages, a liquidated damages clause constitutes the measure of damages (but cannot serve as a penalty).

Answer 417

If one partys expectation is too speculative and they cannot prove damages with certainty, they may opt instead to recover damages based on their reasonable reliance. Reliance damages seek to put the plaintiff in the same position he would have occupied had he never entered the contract (e.g., recovering the cost of performance).

Answer 418

Restitution is geared towards preventing **unjust enrichment**. Where the **contract is unenforceable** , a party may choose to seek restitution in quasi-contract, which is measured by the **benefit received by the defendant** (or the detriment to the plaintiff, where the benefits are difficult to measure or would be unfair).

Answer 419

A third party beneficiary is not a party to the contract, but nonetheless may enforce a contract made for her benefit.

Answer 420

The promisor is the person making the promise that benefits the third party (i.e., the person who gives his performancepaymentto the third party).

Answer 421

The promisee is the person who obtains the promise that benefits the third party.

Answer 422

Only an **intended** beneficiary has contract law rights, as determined by the intent of the parties. Typically, such a beneficiary: **(1)** is **identified** in the contract, **(2)** **receives performance directly** from the promisor, or **(3)** has some **relationship with the promisee** to indicate intent to benefit.

Answer 423

Intended beneficiaries are either donees or creditors (and **usually donees** ). Look to whether the third party beneficiary was a creditor of the promisee before the contract.

Answer 424

A third partys rights to enforce the contract vest when: **(1)** he **manifests assent** to the promise in the manner requested; **(2)** **brings a suit** to enforce the promise; or **(3)** **materially changes position** in justifiable reliance on the promise. After vesting, the promisee and promisor can no longer freely modify or rescind the beneficiarys rights under the contract.

Answer 425

While both the beneficiary and promisee can recover from the promisor, generally the beneficiary _cannot_ recover from the promisee, **except** that a **creditor beneficiary** can recover from the promisee _only_ on a **pre-existing debt**.

Answer 426

If the third party beneficiary sues the promisor, the promisor may assert any defense he would have had if sued by the promisee.

Answer 427

An assignment is a transfer of rights under an existing contract to a third party.

Answer 428

A party to the contract who later **transfers** his rights to another.

Answer 429

A non-party to the contract, who can enforce the contract due to the assignment.

Answer 430

The other, non-assignor party to the contract.

Answer 431

A clause prohibiting assignment eliminates the right, but _not_ the power, to assign. As such, an assignor is liable for **breach of contract** , but an assignee **without notice** of the prohibition can still enforce the assignment. Look for language such as: rights hereunder not assignable. If ambiguous, contract language is construed as a prohibition.

Answer 432

Language of invalidation eliminates _both_ the right and the power to assign, such that there is a breach by the assignor and the **assignee has no rights**. Look for language such as all assignments of rights under this contract are void.

Answer 433

Absent language dealing with the right to assign, the common law bars an assignment that **substantially changes** the duties of the obligor. An assignment of the **right to payment** is a valid assignment, as it does not alter the obligors duties. An assignment of the right to a contract performance **other than the right of payment** is usually a substantial change and, thus, an **invalid assignment**.

Answer 434

Generally, consideration is _not_ required for a valid assignment, although a gratuitous assignment **can be revoked**. Where there is **consideration** supporting an assignment, it is **irrevocable**.

Answer 435

An assignee can recover from an obligor, but an **assignor for consideration**_cannot_ recover from the obligor. An obligor has the same defenses against the assignee they would have had against the assignor.

Answer 436

Payment by the obligor to the assignor is effective until the obligor **knows of the assignment**. Thus, the assignee cannot sue the obligor for paying the assignor because he did not know of the assignment.

Answer 437

Modification agreements between the obligor and assignor are effective if the obligor did not know of the assignment.

Answer 438

There are several implied warranties of an assignor in an **assignment for consideration** : **(1)** the right assigned **actually exists** ; **(2)** the right assigned is _not_ subject to any **then-existing defenses** by the obligor; and **(3)** the assignor will do nothing after assignment to **impair the value** of the assignment. There is _no_ warranty, however, as to the obligors actions after the assignment.

Answer 439

In the case of **gratuitous assignments** , generally the **last assignee** wins (and revokes the prior assignment(s)). Where there are multiple **assignments for consideration** , generally the **first assignee for consideration** wins, _except_ a subsequent assignee takes priority over an earlier assignee for value where he: **(1)** has **no notice** of the earlier assignment, and **(2)** is the first to obtain **payment, a judgment, a novation or indicia of ownership**.

Answer 440

Delegation occurs where a party to the contract transfers the **performance** under the contract to a third party.

Answer 441

A party to the contract who later **transfers** his duties to another.

Answer 442

A non-party to the original contract, now responsible for performing the delegators duties under the contract.

Answer 443

The other, non-delegator party to the contract who will receive the delegatees performance (i.e., third party beneficiary to the delegator-delegatee contract).

Answer 444

A contract creates both **rights and duties**. An **assignment** is the transfer by a party to a contract of his **rights or benefits** under the contract to a third party who was _not_ a party to the contract. By contract, a **delegation** is the transfer by a party of his **duties or burdens** under the contract to a third party who was _not_ a party to the contract. Often, the contracting party makes both an assignment and a delegation of his rights and duties under the contract to a third party.

Answer 445

Generally, all contract dues are delegable, _except_ where: **(1)** duties involve **personal judgment and skill** ; **(2)** a delegation would **change the obligees expectancy** (e.g. requirements and output contracts); **(3)** the other party reposed a **special trust** in the delegator; and **(4)** there is a **contractual restriction** against delegation (or assignments).

Answer 446

A delegator **remains liable** on the contract, but the delegatee is liable (to either party) only if she **receives consideration** from the delegator. A delegation for consideration creates a **third-party beneficiary** situation (in which the beneficiary is the **obligee** ), thus the beneficiary can recover from the promisor.

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