MBE Flashcards
(57 cards)
1
Q
Firm offer rule
A
- Offeror is a merchant
- There is an assurance that offer is to -remain open
- Assurance is contained in a signed writing
- signed by the merchant
Note: if the form was not supplied by seller, there is a requirement for the seller to sign separately.
2
Q
Termination of K
A
- Lapse of time in offer
- destruction or illegality
- Revocation
- options(promise not to revoke)
3
Q
Revocation of K under 2 Redtstment
A
- can be made in any reasonable manner
- reasonable means
- not effective till communicated
4
Q
When is revocation effective
A
When it is received
5
Q
Formation of unilateral K
A
- Not until performance is complete
- once performance begins offeree has reasonable time to complete
- offeree cannot be required to complete
6
Q
Effect of commencement of performance of bilateral K
A
- commencement operates as promise to render complete performance
- offeree is not bound to perform
7
Q
Exception to counter offer rule
A
Option holder has the right to make counter offers during the option period without terminating original offer
8
Q
Forms of Consideration in K
A
- return promise to do
- return promise to refrain from
- actual performance
9
Q
The test for Difference between a gift from valid consideration
A
- could offeree have reasonably believed that the intent of the offeror was to induce the action?
- difference in economic value of the thing exchanged is not valid basis for finding inadequate cobsideratikn
10
Q
Difference between UCC and common law rules regarding K
A
- Common law required consideration
- U.C.C requires only good faith
11
Q
Effects of retraction of waiver of condition for installment contracts
A
- waiver can be done by providing the other party with reasonable notice that strict performance is required
- unless it would be unjust due to material change of position by the other party in reliance on waiver.
12
Q
Accord vs Substituted K
A
- Substituted K is a 2nd agreement which immediately discharges the original K
- remedy in. Breach is limited to the terms of the 2nd K
- also more formal - Accord does not discharge first K and pl can sue on the terms of first K
- less formal
13
Q
Effect of promise to pay a debt discharged in bankruptcy
A
- It is enforceable
- but must be an express agreement rather than a mere acknowledgment or partial payment of the discharged debt
- new promise bed not be in writing
- but the amount which the obliges is entitled to max be the lesser promised amount
14
Q
Requested service
A
- One party that request another party to perform a service but does not indicate price and service is provided
- creates an implied in fact K for the value of the services she refused to pay for
- exception is when there was no exception of payment
NOTE: alway pursue valid K answer options before considering Prom. Estpl. as answer
15
Q
Important considerations in ending Ks
A
- where k is unenforceable it could be based on:
- defenses to formation, or
- defenses to enforcement - Proof of defenses may may make the k voidable or void
- When there are risks to changing facts, look at impracticability and frustration of purpose
- When reformation is available to cure a mistake then neither party can avoid the K
- Risk created by conscious ignorance rest on the party that is aware of her conscious ignorance
- Unilateral k can only be rescinded if there is no risk of prejudice to the other party
- K can be voided for mistake or misrepresentation by party with superior knowledge - subjective determination of misunderstanding
- Determining misunderstanding
- each party’s knowledge or reason to know of the misunderstanding that governs not what reasonable person would know( exception to the objective theory of k)
- conscious ignorance and negligence are valid considerations
16
Q
As-is effect on a K
A
Can shift the risk to buyer in the absence of unconscionability
17
Q
Where a party’s negligence led to failure to discover the misrepresentation
A
This is not sufficient to prevent the party from avoiding the contract
18
Q
Mental or physical infirmity/ confidential relationship/ threat as basis for avoiding a K
A
- the mere existence of the infirmity is not valid grounds for avoiding K
- confidential relation alone is not sufficient, either
- threat is assessed based on a subjective standard - did the threat induce the Larson’s assent?
19
Q
Basis for finding a K illegal
A
- A k does not have to involve an activity that results in criminal penalty to be illegal
- it is sufficient that it contravenes statute or a rule of common law
20
Q
Standard of review of unconscionability in K
A
- it is a question of law for the court; it never goes to the jury
21
Q
When K violates a policy that was intended to protect the party seeking relief
A
The k may still be enforceable to avoid frustrating the purpose behind the policy.
Enforcement Is usually based on implied in law k, quasi-k, quantum meruit recovery which don’t depend on the existence of a valid K
22
Q
Disclaimer of implied warranty of merchantability by seller
A
- By using the word “Merchantability”
- may be done orally
- if it is in writing the disclaimer must be conspicuous
23
Q
When third party beneficiary rights under a k can and can’t be rescinded by mutual agreement
A
Can be if:
1) they have vested by:
- by materially changing her position in justifiable reliance on the rights created, or
- manifests assents at one of the parties’ Request , or
- filed a lawsuit to enforce the k
2) creditor beneficiary - can sue promised or promisee to enforce
3) Intended Beneficiary ( donned and creditor benef)
- the intent is more important than the label- a 3rd party to whom a creditor mistakenly thinks she owes money but does not may be treated as intended even tho 3rd party does not qualify as creditor beneficiary.
4) EXAMS- where promisor promises to pay 3rd party directly to relieve promisee from the debt to 3rd party= Intended B
- if promisor pays promisee in order that she pays 3rd party = likely incidental B
Cannot be if:
-an incidental beneficiary
24
Q
Who can sue who under intended 3rd beneficiary arrangements?
A
- Generally:The promisor may not assert any defenses that the promisee has against the intended beneficiary
- Exception: If the promisor’s promise is one to assume the promisee’s obligation, then the promisor can raise the promisee’s defense.
25
Assignment vs Delegation
Assignment- transfer of rights under a k
Delegation- transfer of duties and obligations
Generally, the prohibition on assignment of a K “this K is may not be assigned” does not affect the assignment of contract rights but only bars delegation of duties
NOTE: Courts will always narrowly interprete a prohibition provision such as by finding that the prohibition provision applies only to a specific to a specific k right and this did not violate the provision.
26
Memorandum that satisfies Statute of frauds
- does not need to be in writing when when promise was made
| - does not have to be addressed to the promisee’s to enforceable by the promisee
27
5. types of k that must be evidenced by a writing
1. Marriage-
2. Suretyship-must not be for surety’s benefit
3. one year - cannot be performed in 1 y
4. UCC - $500 or more
5. Real Property- sale of interest in excludes leases and easements
Mr SOUR
28
Exceptions and exclusions to SOF
1. Oral transfer of interest in real property plus partial performance(2of any 3 of the following)
- payment of all or part of the purchase price
- possession by the purchaser
- substantial improvement of the property by the purchaser
2. Full performance by one party will generally take the k out of SOF realm but party who performed will be entitled to restitution
3. See UCC exceptions
29
Sufficiency of Writing under UCC for SOF
For goods over $500
- indicate a k has been formed
- identify the parties
- contain a quantity term, and
- signed by party to be charged
Signature:
- letterhead in memo is sufficient as signature
- need be signed only by party disputing the existence of K
- be need for enforcing party to sign
30
Exception to writing requirements under UCC for SOF
1. Specially manufactured goods :
- too specially manufactured for buyer
- not suitable for sale to other, and
- substantial beginning of manufacturing or commitment for its procurement.
2. Payments and acceptance by seller
- only has to a portion or full amt - courts view it as enforceable
3. Receipt and acceptance by buyer- acceptance of a particular unit is acceptance of the entire unit
4. Failure to respond to a memo(both are merchants)
- has reason to know content
- receives and fails to respond within 10 days
UNICORN
5. Will enforce provision on K that required modification in writing even if less than $500 or included above exceptions. This is in contrast with the common law where it would be unenforceable
31
Approach to Conditions vs Promises
- reluctance to find condition
- ambiguity often resolved in favor promise
- failure to perform condition relieves a party of obligation to perform
- failure of condition can still be enforced even when it resulted from denial to pay compensation
IMPLIED IN FACT CONDITIONS
Implied conditions are deemed to be part of a k bc the nature of the agreement suggest that the parties truly intended the condition but failed to expressly include it.
CONSTRUCTIVE/ IMPLIED IN LAW
Are supplied by court if reasonable under the circumstances.
SUBSTANTIAL PERFORMANCE
Substantial performance is the only this required to satisfy an implied condition
- the party who substantially performs can recover k price minus any amount that will cost the other party to obtain full performance
- if party has not substantially performed they cannot obtain full k amount- instead they can get restitution.
32
UCC shipment of goods types
1. Ship to buyer or third party - shipment or destination k.
| - SC is presumed when k requires shipment to 3rd party
33
Breach of K before performance due date
1. When the date of performance has not passed and the promisee has fully performed, she must wait until the promisor’s performance is due before suit.
2. Anticipatory breach does not apply, and usually applies where the obligation is payment of money.
NOTE: don’t be nice to party who is suing bc they don’t expect performance to occur.
34
Compensatory Damages
1. Meant to compensate for actual economic losses
2. Put non breaching where they would have been had K been performed
3. plus consequential damages
4. Minus possible mitigation of damages
Or
5. Liquidated damages ( can’t recover both LD & CD)
- reliance or restitution.
35
Measure of Damages in Construction Ks
1. Contractor’s failure:
Failure to begin or complete=difference btw K price and cost of construction by another builder and comp for delay in completion of construction
2. Owner’s failure to pay contract price in whole or in part is profit builder would have earned plus cost incurred by the builder less the amount of any payment made by the owner to the Ktor and any materials purchased by the ktorthaz are used by ktor on another job
3. Restatement:
Expectation Damages= loss of value + other loss -cost avoided - loss avoided
4. Cost avoided - rightfully discontinuing
5. Loss avoided - salvage and reallocate resources
36
Output contract
I don’t know how many I need over the next year but I promise to buy all of them from you
37
Output contract
I don’t know how many I will make over the next year but promise to sell them to you
38
unilateral changes to an express easement
-not allowed- the owner of the servient estate may not unilaterally change.
-only the owner of the dominant estate has
the right to fix location where the it's not fixed by the instrument
-generally the dimensions or use easement may be changed if the change is reasonable in light of the purpose of the easement and otherwise not in conflict with the terms of the easement, a unilateral change in the location of an easement is not permitted.
39
Is a mortgagor in possession liable to the business invitee?
-A mortgagee in possession assumes a duty to take reasonable care of the property and incurs liability as if she were the owner inlcuding invitee for injuries the invitee suffered on the farm.
40
valid consideration for promise to pay less than than an initially owed amount
When a party agrees to accept a lesser amount in full satisfaction of its monetary claim, there must be consideration or a consideration substitute for the party’s promise to accept the lesser amount.
Consideration can exist if the other party honestly disputes the claim or agrees to forego an asserted defense. Here, there was a dispute between the aunt and the law student as to the amount of the aunt's loan.
41
Avoiding K based on one party mistake - contract bid
when one of the parties was mistaken as to an essential element of the contract at the time the contract was formed, either party can generally enforce the contract on its term
However,
if (i) there was a mistake of fact existing at the time the contract was formed, (ii) the mistake relates to a basic assumption of the contract, (iii) the mistake has a material impact on the transaction, and (iv) the adversely affected party did not assume the risk of the mistake and either (i) the mistake would make enforcement of the contract unconscionable or (ii) the non-mistaken party caused the mistake, had a duty to disclose or failed to disclose the mistake, or knew or should have known that the other party was mistaken
42
when is the sixth amendment mandatory?
- in any case in which the defendant is sentenced to incarceration, even if that sentence is suspended where the defendant was not sentenced to imprisonment, but rather required to pay a fine, the 6th is not violated
43
elements of robbery
(i) larceny (ii) from the person or presence of the victim (iii) by force or intimidation. If a defendant takes property with the honest belief that she is entitled to the property as repayment of a debt (i.e., a claim of right), then the taking does not constitute larceny.
However, a claim of right cannot serve as a justification for robbery in most states.
44
basis for valid expert witness testimony
(i) the witness is qualified as an expert by knowledge, skill, experience, training, or education, (ii) the testimony is based on sufficient facts or data, (iii) the testimony is the product of reliable principles and methods, and (iv) the witness applied the principles and methods reliably to the facts of the case.
45
transferred provocation applies.
when a defendant accidentally kills the wrong person, he will be guilty of voluntary manslaughter if that would have been his crime had he killed the provoker.
this does not extend to anyone killed while the killer is operating in the heat of passion. If the defendant, in his passion, intentionally kills another person known to her to be an innocent bystander, then there will be no mitigation, and murder, rather than voluntary manslaughter, will apply
46
can a woman's right to an abortion be restricted previability?
abortion may be restricted pre-viability, so long as the restrictions do not create an undue burden on a woman's right to seek an abortion.
47
The Doctrine of merger
once a deed has been delivered, the land sales contract merges, and the deed controls. Any obligations contained in the contract of sale cannot be enforced unless the deed contains the obligations. A buyer cannot recover under the land sales contract after the deed has been delivered.
48
motion for summary j vs pleadings
When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion. Here, the court considered the shareholder records and the probated will which are both materials outside the pleadings.
49
Basis for excluding science experiments in a court room
because the length and complexity of the demonstration will result in an undue waste of time and may confuse the jury.
otherwise,A court may allow demonstrations and experiments to be performed in the courtroom
50
Avoiding breaching party from profiting
Although expectancy damages normally are awarded in a breach-of-contract action, restitutionary damages are permitted in cases where the nonbreaching party has partially performed a below-market-price contract. Otherwise, the breaching party would profit from its breach.
51
delay to bring charges
The Due Process Clause and federal and state statutes protect defendants from intentional and prejudicial pre-accusation delay. The Due Process Clause may be violated if the delay was used to obtain a tactical advantage for the prosecution or to harass the defendant
52
where Anti-lapse statute does not apply
Non familly members
53
Lacerny -unharvested crops
(i) trespassory (ii) taking and carrying away (iii) of the personal property of another (iv) with the intent to permanently deprive that person of the property. The taking of real-property items (e.g., unharvested crops) is not larceny when the defendant’s act of severance occurs immediately before the carrying away of the real-property items.
54
Notice requirement to enforce an implied covenant
Constructive Notice would not make a negative implied covenant legally enforceable.
Only actual, inquiry or record notice will
55
Standard for partial judgement
Court may direct final partial judgement if the courts determines there is no just reason to delay
56
Common interest groups
Direct restraint on alienation of property and indirect restraint.
Direct restraints are valid if reasonable .
Indirect restraints are valid only if lacking in a rational justification.
Note: Rational justification is less demanding that reasonable justification
Another distinction exist between regulations included in deed or declarations of the common interest development( rational standard applies) and regulations subsequently adopted by property owners associations for community Gov’t(reasonableness standard applies)
Reasonable assessment - utility of purpose with likely harm
57
Wild Deeds
Recorded outside the grantor’s chain of title.
| They do not provide constructive notice
