Midterm

Question 1

Other Kinds of Promises

Answer 1

Gratuitous Promise
Illusory Promise
Illusory Promise + Implied Good Faith

Question 2

Illusory Promise

Answer 2

Open-ended terms of the agreement

Promise to forbear collection of debt until “later”

Question 3

Gratuitous Promise

Answer 3

One-sided agreement; lack of consideration

Promised to grant land if move here

Question 4

Illusory Promise + Implied Good Faith

Answer 4

(Time to review documents before closing on land sale; business efficacy of the promise)

Question 5

Elements for Promissory Estoppel

Answer 5

1. Was there a promise that was made and broken?
2. Did the promisor reasonably expect promise to induce action/forbearance?
3. Did the promise induce such action/forbearance?
4. Will enforcing the promise avoid injustice?
5. Is the remedey limited as justice requires?

Question 6

Unjust Enrichment

Answer 6

• one person is benefited at the expense of another in circumstances that the law sees as unjust
• Action + Implied promise (action comes first)
• Restitution damages

Question 7

Types of Remedies

Answer 7

1. Specific Performance
2. Expectation Damages
3. Reliance Damages
4. Restitution Damages

Question 8

Specific Performance

Answer 8

• Dealt with in a Court of Equity

- Typicall pertains to property or unique items

Question 9

Expectation Damages

Answer 9

• Forward Looking
• Puts party in same position as if the K was fulfilled
• TKT/PE

Question 10

Reliance Damages

Answer 10

• Backward Looking
• Puts promisee back in the position as if the K never occured
• Specifically out-of-pocket expenses

Question 11

Restitution Damages

Answer 11

• Backward Looking
• Return to plaintiff the value of any benefit gain by the defendant
• Unjust enrichment’s only remedy

Question 12

Pre-existing Duty Rule

Answer 12

If a party to a contract is under a pre-existing duty to perform, then no consideration is given for any modification of the contract

Question 13

Elements of Duress

Answer 13

1. There must be a threat
2. The threat must be improper
3. The threat must induce the victim’s manifestation of assent
4. It must be sufficeintly grave to justify the victim’s assent

Question 14

Concealment

Answer 14

1. Make an affirmative act to keep information from the other party
2. Must be ENTIRELY concealed (not a half-truth)
3. Saying nothing is not an affirmative act

Question 15

Misrepresentation

Answer 15

1. Assertion not in accordance with the facts (includes half-truths)
2. Either fraudulent or material
3. Assertion must induce a manifestation of assent
4. Must be justifiably relied on

Question 16

Exceptions to Misrepresentation

Answer 16

1. When the maker stands in a relationship of confidence and trust with the other party
2. Recipient reasonably believes the one asseritng opinio has special knlowdge or expertise
3. The recipient for some reason is particularly susceptible to a misrepresentation

Question 17

Promissory Fraud

Answer 17

Making a promise where the promisor never intended to perform at the time of the promise’s making

Question 18

Unfairness

Answer 18

• Can only sue for Specific Performance
• Disparity in bargaining power
• Can be from a lack of consideration
• Looked at the time the contract was entered (not retroactive)

Question 19

Standardized Contracts

Answer 19

• Widely used

- Sometimes room for negotiation

Question 20

Adhesion Contracts

Answer 20

• Standardized

- No room for negotiation; take it or leave it

Question 21

Unconscionability

Answer 21

• K too unfair to be enforced

Question 22

Types of Unconscionability

Answer 22

1. Procedural (the bargaining process)

2. Substantive (unfair terms)

Question 23

Intent to be Bound in Absence of a Formal Document

Answer 23

Intent NOT to be bound when:

1. Whether therehas been an expressed reservation of the right not to be bound in the absence of a writing
2. Whether there has been partial performance of the contract
3. Whther all of the terms of the alleged contract have been agreed upon
4. Whther the agreement at issue is the type of contract that is usually committed to writing

Question 24

Bargain Theory of Consideration

Answer 24

1. What was the promisor seeking?
2. What did the promisor receive?
3. Was #2 caused by #1?

Question 25

Court of Equity

Answer 25

Causes of Action: Misrepresentation and Duress

Remedy: Specific Preformance