Missed q's or new concepts Flashcards
(178 cards)
1
Q
Basic rule for battery liability
A
Battery liability arises when the defendant intended (i.e., purposefully or knowingly) to cause contact with the plaintiff’s person and the defendant’s affirmative conduct caused contact that was harmful or offensive to the plaintiff.
2
Q
Rule for misunderstanding as a contract defense to formation
A
A misunderstanding involving a material term prevents contract formation when neither party OR both parties knew or had reason to know about the misunderstanding. In this case, no contract is formed because there was no meeting of the minds. However, if only one party knew or had reason to know, then a valid contract is formed using the unknowing party’s meaning of the term. Alternatively, either party can waive the misunderstanding and enforce the contract on the other party’s understanding.
3
Q
3 elements for avoiding a contract on grounds of mutual mistake.
A
The adversely affected party can avoid a contract on the grounds of mutual mistake if (1) the mistake relates to a basic assumption of the contract, (2) the mistake materially affects the agreed exchange of performances, and (3) the adversely affected party does not assume the risk of the mistake.
4
Q
The PER allows showings of what 3 kinds of evidence to supplement or explain the final written agreement?
A
The UCC parol evidence rule always allows course of performance, course of dealing, and trade usage to be used to explain or supplement the terms of a final written agreement—even one that is completely integrated.
5
Q
Rule statement for Libel
A
Libel is defamation by words written, printed, or otherwise recorded in permanent form (eg, emails). A libel plaintiff can recover general damages to compensate the plaintiff for the presumed harm to his/her reputation.
6
Q
Exception to the Best Evidence Rule: document unavailable by judicial processes
A
An exception to the best evidence rule allows a party to introduce other evidence of a document’s content when the original (1) is in the possession of a person or entity that is not a party to the litigation and (2) cannot be obtained by any available judicial process.
7
Q
FRE 104: Prelim questions decided with or without the jury present?
A
Hearings on preliminary questions must be held outside the jury’s presence if (1) the hearing involves the admissibility of a confession, (2) a defendant in a criminal case is a witness and so requests, or (3) justice so requires- such as if that evidence would prejudice a party if heard by the jury.
8
Q
FRE rule 301: presumptions and the bursting bubble approach
A
Under the “bursting bubble” approach, a rebuttable presumption “bursts” when the opposing party in a civil case produces sufficient evidence to contradict the presumed fact. The fact finder must then weigh the evidence to decide the issue.
9
Q
Contracts: rule for a debtor’s renewed promise to pay all or part of debt (after a statute of limitations has run)
A
A promise to perform a preexisting duty is generally unenforceable. But a debtor’s renewed promise to pay all or part of a preexisting debt is enforceable if the debtor renewed his/her promise despite a technical defense (eg, statute of limitations) AND the renewed promise was made in writing or partially performed.
10
Q
Contracts: illegality due to a party not having a required license
A
Illegal contracts are generally void as against public policy. But if a contract is illegal solely because a party does not have a required license, then the enforceability of the contract depends on whether the purpose behind the licensing requirement is:
economic (eg, raise revenue) – in which case the contract is enforceable or
regulatory (eg, protect public health or safety) – in which case the contract is unenforceable if the public policy behind the requirement clearly outweighs the interest in enforcing the contract.
11
Q
The recorded recollection hearsay exception
A
The past recollection recorded (ie, recorded recollection) hearsay exception applies to records that (1) concern a matter a witness once knew but cannot recall at trial, (2) were made or adopted by the witness when the matter was fresh in his/her mind, and (3) accurately reflect the witness’s knowledge at that time.
12
Q
Rule for business records hearsay exception
A
Business records are excepted from hearsay if they were (1) made at or near the time of the recorded event, (2) made by or based on information from someone with personal knowledge, and (3) made and kept as a regular practice in the course of regular activities of the business.
13
Q
When is a defamatory statement made to a 3rd party privileged?
A
A defamatory statement communicated to a third party is privileged when the defendant reasonably believes that (1) the statement affects an important interest of the third party and (2) the communication is socially acceptable. This privilege is lost if the defendant knows that the statement is false or recklessly disregards that possibility.
14
Q
Satisfying a disputed debt
A
If a debt is disputed in good faith, then the debtor can offer to satisfy the debt by giving the creditor a check with a conspicuous “payment-in-full” notation. But if the debt is liquidated (ie, certain and undisputed in amount), then it cannot be satisfied by a check for a lesser amount—even if the creditor cashes the check.
15
Q
When are duplicate documents inadmissible under the best evidence rule?
A
Under the best evidence rule, a duplicate of a recording, writing, or photograph is admissible to prove its contents unless (1) a genuine question is raised about the original’s authenticity or (2) circumstances make it unfair to admit the duplicate.
16
Q
The best evidence rule (and when a duplicate document is inadmissible)
A
The best evidence rule requires that an original or reliable duplicate of a recording, writing, or photograph (referred to as “document”) be produced to prove its contents. However, a duplicate is not admissible, and the original must be produced, if:
a genuine question is raised about the original’s authenticity or
circumstances make it unfair to admit the duplicate (eg, when only part of the original is duplicated).
17
Q
Elements for negligent misrepresentation liability
A
Liability for negligent misrepresentation arises when a defendant negligently provides false information to a plaintiff who reasonably relies on that information (1) in a commercial setting and suffers pecuniary loss or (2) under circumstances posing a risk of physical harm and suffers physical harm.
18
Q
When a party promises to pay money received from a contract to a third party, is that an assignment?
A
A party’s promise to pay money received pursuant to a contract to a third party is not an assignment of the party’s contractual rights, but a promise of future payment.
19
Q
In a contract where a party promises to pay money received to a third party, is that third party an assignee?
A
An assignment is the transfer of rights under a contract to another (ie, assignee). No formalities are needed for an assignment, but there must be a present intent to transfer the rights immediately. A party’s promise to pay money received pursuant to a contract to a third party is not an assignment of the party’s contractual rights, but a promise of future payment. Therefore, the third party in that situation is not an assignee.
20
Q
Battery elements (3)
A
A defendant is liable for battery if (1) he/she intends to cause contact with the plaintiff’s person, (2) the defendant’s affirmative conduct causes such contact, and (3) the contact causes bodily harm or is offensive to the plaintiff. However, the defendant is not liable for battery if the plaintiff consented to such contact.
21
Q
What 3 things could prevent the retraction of an anticipatory repudiation?
A
A party who anticipatorily repudiates a contract may retract the repudiation if the nonrepudiating party is notified of the retraction before (1) canceling the contract, (2) materially changing position in reliance on the repudiation, or (3) indicating that he/she considers the repudiation to be final.
22
Q
UCC’s battle of the forms rule: New terms between merchants
A
Under the UCC’s battle-of-the-forms rule, an acceptance is effective even if it contains new terms. But in a contract between merchants, the new terms fall away if (1) the offer expressly required assent to new terms and no assent was given, (2) the offeror objects within a reasonable time, or (3) the new terms materially alter the contract.
23
Q
A promise to surrender a claim or defense can be consideration when…. (2 scenarios)?
A
A promise to surrender a claim or defense (eg, by issuing a quitclaim deed) can serve as consideration so long as (1) the claim or defense is valid or subject to a good faith dispute or (2) the surrendering party honestly believes it may be valid.
24
Q
Evidence: Rule for judicial notice of an adjudicative fact
A
A court can take judicial notice of any adjudicative fact that is not subject to reasonable dispute because it (1) is generally known within the court’s jurisdiction or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
25
Fraud (tort): When a party has an affirmative duty to disclose material facts (3)?
An affirmative duty to disclose a material fact exists if the plaintiff is (1) in a fiduciary relationship with the defendant, (2) likely to be misled by the defendant's prior statements, or (3) mistaken about a basic fact of the transaction that the defendant is aware of and should disclose (minority of jurisdictions).
26
False imprisonment vs a private citizen's privilege to arrest
In most jurisdictions, a defendant is privileged to confine or arrest a plaintiff when a felony has been committed and the defendant reasonably suspects that the plaintiff committed it.
27
Authentication of documentary evidence
Documentary evidence can be authenticated by having a lay witness with personal knowledge of the claimed author's handwriting—not acquired for the current litigation—testify that the document is in the author's handwriting.
28
Ratification by a minor
A minor lacks capacity to contract, so the minor can choose to (1) void the contract before or soon after turning 18 or (2) ratify it after turning 18. If the contract is ratified by a promise to perform only part of the contract, enforcement is limited to that promise to partially perform.
29
Rule for hearsay within hearsay
When an out-of-court statement that is offered for the truth of the matter asserted therein is contained within another, neither statement is admissible unless both are excepted or excluded from the rule against hearsay.
30
Evidence: Authentication of a photograph
A photograph is authenticated when a witness with personal knowledge of the thing depicted testifies that the photograph fairly and accurately depicts that thing.
31
Torts, products liability: The rule for adequate warnings/instructions
Under products liability law, commercial suppliers are required to provide adequate warnings (or instructions) when:
- their product poses a foreseeable and unobvious risk of physical harm and
- reasonable warnings could reduce that risk.
Failure to provide adequate warnings renders a product defective and subjects a commercial supplier to strict liability when that defect causes the plaintiff harm. To prove that the defect caused his/her harm, the plaintiff must show that the harm would not have occurred had a legally sufficient warning been provided.
32
Torts: Rule for a claim of intentional misrepresentation
To establish a prima facie case of intentional misrepresentation (ie, fraud or deceit), the plaintiff must show that:
the defendant knowingly or recklessly misrepresented a material fact with the intent to induce the plaintiff's reliance and
the plaintiff reasonably relied on the misrepresentation and suffered pecuniary loss (ie, monetary loss) as a result.
33
Satisfying the SOF through part performance (sale of land) (3 elements)
A contract involving land that violates the statute of frauds is enforceable on part-performance grounds if the buyer has done at least two of the following: taken possession of the property, substantially improved it, and/or paid any portion of the purchase price.
34
Definition/rule for third-party beneficiaries
A third-party beneficiary is a nonparty to a contract who receives an advantage or benefit from the contract. The third party can enforce the contract if the third party is an intended beneficiary (ie, one whom the contracting parties intended to benefit directly). Although unusual, a third party does not need to be named in the contract to be an intended beneficiary or have enforcement rights.
35
Rule for the UCC's battle of the forms
The UCC, which governs contracts for the sale of goods, uses the battle-of-the-forms rule for contract formation. Under this rule, an acceptance of an offer is effective even if the acceptance contains new terms. If both parties are merchants, the new terms become part of the contract unless:
the offer expressly requires the offeror's assent to new terms
the offeror objects within a reasonable time or
the new terms materially alter the contract.
36
Remedy for a lost-volume seller for reputiation or other breach
When a seller has a practically inexhaustible inventory of the goods and but for a buyer's breach would have made two sales and two profits rather than one (ie, lost-volume seller), the seller is entitled to lost profit from the original sale plus incidental damages.
37
Torts: The emergency consent defense (4 elements)
Under the emergency doctrine, a plaintiff's consent is presumed when (1) the purpose is to prevent or reduce a risk, (2) the defendant reasonably believes that his/her conduct is necessary to prevent or reduce a risk that substantially outweighs the plaintiff's interest in avoiding the conduct, (3) the defendant reasonably believes that immediate action is needed, and (4) he/she has reason to believe that the plaintiff would have actually consented.
38
Exceptions to the Parole Evidence Rule (6)
Exceptions to parol evidence rule
Evidence of prior or contemporaneous oral or written agreement is admissible to establish:
- whether writing is integrated and, if so, completely or partially
- meaning of ambiguous term
- defense to formation or enforcement (eg, fraud, duress, mistake)
- ground for granting or denying remedy (eg, rescission, reformation)
- subsequent contract modifications
condition precedent to effectiveness
39
Condition precedent exception to the Parole Evidence Rule
Evidence used to establish a condition precedent that must occur before a contract becomes effective is admissible under the parol evidence rule.
40
Evidence: Difference between the marital-communications privilege and the spousal-immunity privilege.
The marital-communications privilege protects confidential communications during the marriage from disclosure in a civil or criminal case. In contrast, the spousal-immunity privilege protects persons from being required to testify against their spouse in a criminal case about events that occurred before or during the marriage.
41
What are the two requirements for a duress defense to contract enforcement?
Duress may serve as a defense to contract enforceability if a contracting party's assent was induced by an improper threat from another contracting party—eg, a threat that breached the contractual duty of good faith and fair dealing. When this occurs, the contract becomes voidable and can be rescinded if the threatened party:
- had no reasonable alternative but to succumb to the improper threat and
- promptly (ie, within a reasonable time) disaffirmed the contract.
42
Rule for anticipatory repudiation
The doctrine of anticipatory repudiation is applicable when a contracting party indicates an unwillingness to perform a promise before the time for performance arises or elapses. The repudiation must be clear and unequivocal, and it may be by words or actions. Upon repudiation, the nonrepudiating party may either treat the repudiation as a breach or ignore it and demand performance pursuant to the contract.
43
In a contract for the sale of an assortment of goods, what can the seller do if the buyer fails to timely select the assortment and the delay materially impacts the seller's performance?
If the buyer fails to timely select the assortment of goods for delivery and the delay materially impacts the seller's performance, then the seller can (1) proceed in any reasonable manner or (2) treat the failure as a breach.
44
Torts: Elements of slander (4)
To establish a defamation claim based on slander, the plaintiff must prove all of the following:
1. The defendant knowingly made a false statement about the plaintiff or should have known that the statement was false.
2. That type of statement would tend to harm the plaintiff's reputation.
3. The defendant intentionally or negligently communicated that statement to a third party.
4. That statement caused the plaintiff special harm or was slanderous per se—eg, accused the plaintiff of conduct adversely affecting the plaintiff's occupation.
Negligent communication (ie, publication) occurs when it is reasonably foreseeable that a third party might hear the defendant's statement.
45
Evidence: Opposing party statements rule
Statements made by and offered against an opposing party are considered nonhearsay and, if relevant, are admissible for their truth.
46
Torts: What are the 3 "special situations" where a Plaintiff need not be present to claim NIED?
Negligent infliction of emotional distress occurs under the special-situations theory when the plaintiff suffers serious emotional distress because the defendant negligently (1) delivered an erroneous announcement of death or illness, (2) mishandled a corpse or bodily remains, or (3) contaminated food with a repulsive foreign object.
47
Evidence: What are the two methods of handwriting verification?
Documentary evidence can be authenticated by two methods of handwriting verification: (1) a lay witness with personal knowledge of the claimed author's handwriting testifies about it or (2) an expert witness or the trier of fact compares the writing in question with another authenticated writing.
48
Elements of promissory estoppel (detrimental reliance)
Even when there is no valid contract, a party may recover damages under an equitable theory of relief. For example, the doctrine of promissory estoppel allows a party to recover damages stemming from another's promise if:
1. promisor reasonably expected to induce reliance on promise
2. enforcing party reasonably relied on promise
3. reliance caused enforcing party to suffer substantial detriment and
4. injustice can be avoided only by enforcing promise
49
Suretyships and the statute of frauds
A suretyship is a promise to assume responsibility for a duty incurred by another. Unless a suretyship is made for the promisor's own economic advantage, it is subject to the statute of frauds—ie, it must be in writing and signed by the party against whom enforcement is sought.
50
Battle of the forms rule when both parties are merchants (3)
Under the battle-of-the-forms rule, an acceptance is effective even when it contains new terms. If both parties are merchants, the new terms become part of the contract unless (1) the offer expressly required the offeror's assent to new terms, (2) the offeror objected within a reasonable time, or (3) the new terms materially alter the contract.
51
Does nondisclosure of a fact count as misrepresentation?
Nondisclosure of a known fact is tantamount to an assertion that it does not exist if, among other things, the party not disclosing the fact knows that disclosure is necessary to prevent a previous assertion from being fraudulent.
52
Rule for reformation of a contract
Where a party misrepresents the contents or effect of a writing that embodies all or part of a contract, a court can reform (ie, rewrite) the writing to comport with what had been represented if:
1. the misrepresentation was fraudulent—ie, made knowingly or recklessly, with intent to induce the other party's assent;
2. the misrepresentation induced assent to the writing; and
3. the adversely affected party justifiably relied on the misrepresentation.
However, a court will not do so to the extent that the rights of third parties (eg, good-faith purchasers for value) would be unfairly affected.
53
UCC: What is an illusory promise? (In the context of consideration)
An illusory promise is one that imposes no obligation on the promising party and therefore fails to provide the consideration needed for contract formation.
54
Under the UCC, does a buyer waive any remedies for breach of contract if they reject nonconforming goods?
The UCC allows a buyer to accept or reject nonconforming goods in whole or in part and, in either event, recover damages for breach.
55
Under the UCC's gap fillers, if a contract does not specify time of payment, when is payment due?
Unless the contract specifies otherwise, payment is due at the time and place the buyer is to receive each shipment of goods. In that case, the seller is only required to deliver the goods if the buyer tenders the payment.
56
CL: When do contract modifications not require consideration? (2 elements)
At common law, contract modifications generally must be supported by new consideration to be enforceable. This requires both parties to alter their duties in some way. However, modifications are enforceable without new consideration if the modification:
1. rests on circumstances not anticipated by the parties when the contract was made* and
2. is fair and equitable in light of those circumstances.
57
Rule for Revocation of an offer contract (before acceptance) (2 possible)
An offer to form an option is revocable prior to acceptance of the option. Revocation occurs when:
1. the offeror directly communicates the revocation to the offeree or
2. the offeree learns information from a reliable source that reasonably indicates the offer was revoked (e.g., house sold to another buyer).
58
Option contracts and the mailbox rule.
Under the mailbox rule, acceptance of an offer is generally effective upon dispatch. However, one exception to the mailbox rule applies to option contracts, where acceptance is effective upon receipt.
59
CL: Rule for notice of beginning of performance
Notice is not required to accept an offer by starting performance unless the offer so requires. However, if the offeree should know that the offeror has no convenient way of learning within a reasonable time that performance has begun, the offeree must notify the offeror. Failure to do so will discharge the offeror's contractual duty.
60
CL's mirror image rule vs UCC's battle of the forms rule. (mutual assent/acceptance)
Under the common law, an acceptance is only effective if it is the mirror-image of the terms in the offer. This rule has been relaxed by Article 2 of the Uniform Commercial Code (UCC), which governs contracts for the sale of goods (eg, industrial freezers). The UCC uses the battle-of-the-forms rule, where any reasonable manifestation of acceptance—even one including new terms—is effective unless it is expressly conditioned on the offeror's assent to the new terms.
61
Definition of implied-in-fact contracts
An implied-in-fact contract arises when a party's assent to enter a contract is inferred from the party's conduct or failure to act. This inference arises when a party (1) intentionally engages or fails to engage in conduct and (2) knows or has reason to know that the conduct may cause the other party to understand that the party assents.
62
Rule for common law contract modifications
Under the common law, contract modifications are only binding if they are supported by new consideration. This requires both parties to alter their duties in some way.
63
Definition of 'implied-in-law' (quasi) contracts.
Courts will construct an implied-in-law ("quasi") contract where the plaintiff has conferred a measurable benefit on the defendant without gratuitous intent and it would be unfair to let the defendant retain the benefit without compensating the plaintiff.
64
A general assignment of an entire contract will be construed as...?
A general assignment of an entire contract will be construed as both an assignment of rights and a delegation of duties to a nonparty (ie, delegatee). For example, a seller's assignment of an entire contract gives the delegatee the duty to deliver the goods and the right to receive payment directly from the buyer.
65
What can the jury infer in strict product liability claims? Based on what 2 elements?
The trier of fact can infer that the product was defective and caused the plaintiff's harm if that harm (1) is of a kind that ordinarily results from a product defect and (2) was not solely due to other causes. This is true even when the plaintiff lacks direct evidence on these last two elements.
65
Trespass (intentional) definition and damages
Trespass is an intentional, unauthorized entry onto land in the plaintiff's possession (ie, land the plaintiff occupies or controls). The plaintiff can recover nominal damages (eg, $1) for a harmless trespass or compensatory damages for a harmful trespass. Punitive damages and/or injunctive relief may also be available.
66
Contract formation misunderstanding rule
If neither (or both) of the parties to a contract know or have reason to know about a misunderstanding involving a material term, no contract is formed. But if one party knows or has reason to know, a valid contract is formed and the unknowing party's meaning of the term controls. Alternatively, either party can waive the misunderstanding and enforce the contract on the other party's understanding.
67
Res ipsa loquitur rule
In the absence of direct evidence of negligence, the doctrine of res ipsa loquitur allows the defendant's negligence to be inferred when:
the plaintiff suffered a type of harm that is usually caused by negligence of someone in the defendant's position and
the evidence tends to eliminate other potential causes of that harm.
68
Rule for a private nuisance claim
A plaintiff can sue for private nuisance when a person interferes with the plaintiff's use and enjoyment of his/her property. To prevail in that suit, the plaintiff must show that the interference was both:
1. substantial – offensive, annoying, or intolerable to a normal person in the community and
2. unreasonable – effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria.
An interference is not substantial if the plaintiff's unusual sensitivity causes him/her to regard the interference as offensive, annoying, or intolerable when a person with normal sensibilities would not.
69
Assuming a hearsay statement falls into one of the exceptions, can an opposing party impeach the non-present declarant?
When an out-of-court statement is admitted under a hearsay exception, the declarant can be impeached as if the declarant had testified at trial—eg, with a bad act that is probative of the declarant's character for (un)truthfulness.
70
What is a shipment contract? When does the risk of loss shift to the buyer?
A contract that requires the seller to deliver the goods by third-party carrier but does not specify a delivery location is a shipment contract. Under such a contract, the risk of loss shifts to the buyer when the seller delivers the goods to the carrier and makes a proper contract for their shipment.
71
Torts: Liability rule for multiple tortfeasors (acting in concert)
If multiple tortfeasors act pursuant to a common plan or design (ie, act in concert) and at least one of them causes the plaintiff's harm, then all of the tortfeasors are jointly and severally liable for the harm.
72
When the property owner breaches a construction contract before or during construction, what damages can the builder recover?
When the owner breaches a construction contract before or during construction, the builder can recover its lost profits (ie, expectation damages) plus any reasonably incurred costs. Post-breach costs are not recoverable.
73
Rule for the residual/catchall hearsay exception (3 elements)
A hearsay statement is admissible under the residual or catchall exception if (1) the statement is supported by sufficient guarantees of trustworthiness, (2) it is more probative on the point than any other evidence obtainable through reasonable efforts, and (3) the proponent gives the adverse party notice of the intent to offer the statement.
74
Recovery limitations for a divisible contract
A divisible contract can be separated into distinct performance periods (here, weekly). However, recovery is limited to the portion of the contract that has been performed.
75
Damages/remedies for a party who has a) substantially performed, or in contrast, b) materially breached.
A party who substantially performs contractual obligations (i.e., commits a minor breach) can recover on the contract even though that party has not rendered full performance. The substantially performing party can generally recover the contract price minus any cost that the nonbreaching party incurred to receive full performance.
In contrast, a party who commits a material breach by failing to substantially perform cannot recover under the contract. The breaching party can only recover in for any benefit conferred on the nonbreaching party minus damages for the breach.
76
Rule: Hearsay exception for statements affecting an interest in property
Statements in documents that purport to affect a property interest are excepted from hearsay if (1) the matter stated was relevant to the document's purpose and (2) later dealings with the property do not contradict the truth of the statement or the purport of the document.
77
Rule for satisfying a debt disputed in good faith
When a debt is disputed in good faith, the debtor can offer to settle the debt by giving the creditor a check with a conspicuous notation stating that it constitutes payment in full. The creditor can then:
a) cash the check – in which case the creditor impliedly agrees to an accord and satisfaction, and the debt is discharged; or
b) reject the check – in which case the debt is not discharged.
78
What is the weight of community or industry custom on the issue of negligence?
Evidence that the defendant complied with (or deviated from) community or industry custom is relevant—but not conclusive—on the issue of negligence.
79
Evidence: when may a criminal defendant offer a) reputation or opinion evidence, and b) specific instances of conduct evidence, on their good character trait?
A criminal defendant may offer reputation or opinion testimony on his/her good character when that character is (1) an essential element of a crime or defense or (2) otherwise pertinent to the case. But specific instances of conduct may only be used when character is an essential element of a crime or defense.
80
Under the UCC's perfect tender rule, if a buyer rightfully rejects goods, are they allowed to dispose of them? If not, and they wrongfully do so, what damages is the seller entitled to?
The UCC governs contracts for the sale of goods (eg, costumes). Under the UCC perfect-tender rule, goods must conform perfectly to the contract. Failure to provide such goods is a breach that, unless cured in the time remaining to perform, allows the buyer to reject or accept the goods in whole or in part.
Upon rejection, the buyer must retain possession of the goods for a reasonable time so that the seller can reclaim them. If the buyer wrongfully disposes of the rejected goods, the seller may sue the buyer for conversion to recover the fair market value of the converted property at the time of the conversion.
81
If you are seeking to maximize your damages amount on a valid contract, why would a theory of substantial performance be better than the theories of a) promissory estoppel, b) impracticability, or c) a divisible contract?
Because a party that has substantially performed can recover on the whole contract price. In contrast, a) promissory estoppel only applies when there is not a valid contract; b) impracticability is a defense to enforcement, not a ground for recovery; and c) a divisible contract limits recovery to the portion that has been performed.
82
How does a lack of consideration affect an assignment of contract rights?
An assignment is the transfer of contractual rights to a third party. If an assignment is not supported by consideration, then it is a gratuitous assignment and is generally revocable (exceptions listed below). A revocable assignment is automatically revoked upon the death, incapacity, or bankruptcy of the assignor.
An assignment is no longer revocable if
a) the obligor already performed;
b) document symbolizing assigned right (eg, stock certificate) delivered;
c) written & signed assignment delivered; or
d) promissory estoppel applies
83
UCC: rule for when a contract is formed if it reflects an intent to be bound only if the price is subsequently set?
Under the UCC, a contract is formed if both parties intend to contract and there is a reasonably certain basis for giving a remedy for a breach. So when an agreement reflects an intent to be bound only if the price is subsequently set, no contract is formed until the price is set.
84
Rule for unconscionability
A court may modify or refuse to enforce a contract on the ground that it is unconscionable—i.e., so unfair to one party that no reasonable person in that party's position would have agreed to it.
Unconscionability can be procedural or substantive, and it is a question of law for the court (not the jury) to decide based on the circumstances. The contract is substantively unconscionable if the terms are unduly unfair.
85
Is bad faith a defense to contract formation?
No. A duty of good faith and fair dealing is imposed on each party in the performance and enforcement of an existing contract—not in contract formation. While acting in bad faith during contract negotiations may have consequences, bad faith alone is not a defense to contract formation.
86
Rule for duress defense to contract formation
Duress is an improper threat that deprives a party of meaningful choice. Examples of improper threats include threats of a crime, a tort, criminal prosecution, or pursuing a civil action in bad faith.
87
Rule statement for compensatory damages and the 3 subtypes:
The primary goal of contract damages is to place the nonbreaching party in the same position as if the contract had been performed (i.e., to give that party the "benefit of the bargain"). This typically means that the nonbreaching party can recover compensatory damages, which includes:
1. expectation damages – the value of performance without the breach (what was promised) minus the value of the performance with the breach (what was received);
2. incidental damages – compensation for commercially reasonable expenses incurred as a result of the other party's breach;
3. consequential damages – compensation for losses that do not flow directly and immediately from the other party's breach, including lost profits, so long as the losses are not too speculative.
88
Rule statement for incidental damages.
Incidental damages may be awarded as compensation for commercially reasonable expenses incurred because of the other party's breach.
89
Rule statement for consequential damages
Consequential damages may be awarded to compensate for losses that do not flow directly and immediately from the other party's breach—so long as the losses are not too speculative.
90
What's the difference between an accord agreement and a substitute contract?
Parties to a contract may agree to change one or both parties' performance through an accord agreement or a substitute contract:
Accord agreement – when a party agrees to accept different performance in satisfaction of (i.e., in place of) the original promise; after breach, the party can sue under either the original contract or the accord agreement.
Substitute contract – when the parties form a second agreement that immediately discharges the original contract; after breach, a party can sue under the substitute contract only.
Whether the parties formed an accord agreement or a substitute contract is a fact issue that depends on the formality of the agreement. The more formal the agreement (e.g., words discharging original duties, consideration on both sides), the more likely the fact finder will determine that the parties intended to create a substitute contract.
91
UCC rule for when an owner of a good entrusts a good to a merchant of that good.
Entrustment includes any delivery and acquiescence to the possession of goods, regardless of conditions expressed between the parties.
Under the UCC, which applies to contracts for the sale of goods, the entrustment of goods by the owner to someone who sells goods of that kind (i.e., a merchant) gives the merchant the power to convey good title. Good title can be conveyed to a buyer in the ordinary course of business—i.e., someone who buys goods:
1. in good faith;
2. without knowledge that the sale violates the owner's rights to the goods; and
3. from a merchant in the business of selling goods of that kind.
92
Rule for frustration of purpose defense to contract enforcement.
Frustration of purpose allows a party to rescind a contract when an unexpected event destroys that party's purpose in entering the contract. The nonoccurrence of the event must have been a basic assumption of the contract.
93
Rule for mutual mistake, and assumption of the risk.
A mutual mistake may render a contract voidable by the adversely affected party. But a party assumes the risk of the mistake—and cannot void the contract—if the party knew at the time of the contract that he/she had limited knowledge of the facts and accepted this knowledge as sufficient.
94
Rule for when contract delegation is not permitted.
Delegation of contractual duties is not permitted when (1) the contract prohibits delegation or (2) the other party to the contract has a substantial interest in having the delegating party perform. Otherwise, delegation is permitted, and the other party to the contract must accept performance by the delegatee.
95
3 definitions of a merchant under the UCC's firm offer rule
Under the UCC firm-offer rule, a merchant includes (1) one who regularly deals in goods of the kind involved, (2) one who, by occupation, holds out as having knowledge or skill peculiar to the practices or goods involved, and (3) any businessperson when the transaction is of a commercial nature.
96
What is the rule for modified contracts under the statute of frauds? What is the effect of a party's detrimental reliance on a modified contract that does not satisfy the SOF?
The parties' oral modification was subject to the statute of frauds because the contract, as modified, was for the sale of goods for $500 or more. However, the statute of frauds will not prevent the enforcement of an oral modification when, as here, (1) the promisor should have reasonably expected to—and did—induce action or forbearance on the modification and (2) injustice can be avoided only by enforcing the modification.
97
Under the UCC, what is a buyer's obligation toward any goods in their possession that they are rejecting? Can they sell the goods?
After rejection, the buyer has an obligation to take reasonable care of any goods in its possession until the seller has had a reasonable amount of time to retrieve them (Choice B).
When the seller does not retrieve the goods or provide further instructions, the buyer may generally choose to store, reship, or sell the goods on the seller's behalf.
However, the buyer is required to sell the goods on the seller's account if:
1. the buyer is a merchant—i.e., one who regularly deals in goods of the kind involved or who, by occupation, holds him/herself out as having knowledge or skills unique to the goods involved*
2. the goods involved are perishable or threaten to speedily decline in value and
3. the seller has no local agent to whom the goods can be returned.
98
How do you recognize express conditions?
Words in the contract such as "on the condition that" or "provided that" are typical indicators of express conditions.
99
What's the relationship between substantial performance and express conditions?
Substantial performance will not suffice for express conditions in a contract. Such conditions must be performed in full.
100
Difference in consideration requirements between a regular option contract and a UCC firm offer?
An option is an independent promise to keep an offer open for a specified period of time. To be enforceable, the option generally must be supported by separate consideration. But under the UCC firm-offer rule, no consideration is needed if the offeror is a merchant.
101
Under Parol Evidence exceptions, what's the difference between evidence of a 'course of dealing' and a 'sequence of conduct'?
Course of dealing is a sequence of conduct concerning previous contracts between the parties that can reasonably establish a common basis of understanding for interpreting their conduct.
A course of performance is a sequence of conduct that is relevant to understanding an agreement between the parties if: a) the agreement involved repeated occasions for performance by a party; and b) the other party accepted performance without objection and with knowledge of the course of performance.
102
How can a party waive their condition precedent to performance?
A party to a contract whose duty to perform is subject to a condition can waive the condition by words or conduct.
103
What is the impact of an offeror's death on a valid option contract?
An offer to form a contract generally remains open for the time stated in the offer or, if no time is stated, for a reasonable time. However, an offer will terminate prematurely if the offeror dies or becomes mentally incapacitated before the offer is accepted—with one exception.
An option contract will not terminate under such circumstances because the offeree gave separate consideration to keep the offer open for a specified period of time.*
104
Rule for impeaching a hearsay declarant (not witness). How do they differ?
When a hearsay statement is admitted under (1) anyhearsay exception or (2) the hearsay exclusion for statements made by an opposing party's agent, employee, or coconspirator, the declarant's credibility may be attacked (and then supported) as though the declarant had testified as a witness. The same methods for impeaching a witness can therefore be used against the declarant. But unlike a witness's inconsistent statement, a declarant's inconsistent statement can be used for impeachment even if:
a) the inconsistent statement occurred after the hearsay statement or
b) the declarant had no opportunity to explain or deny the inconsistent statement.
105
Res ipsa loquitur
in the absence of direct evidence of negligence, the doctrine of res ipsa loquitur allows the defendant's negligence to be inferred when:
the plaintiff suffered a type of harm that is usually caused by negligence of someone in the defendant's position and
the evidence tends to eliminate other potential causes of that harm.
106
Torts: Rule for a private nuisance claim
A plaintiff can sue for private nuisance when a person interferes with the plaintiff's use and enjoyment of his/her property. To prevail in that suit, the plaintiff must show that the interference was both:
a) substantial – offensive, annoying, or intolerable to a normal person in the community; and
b) unreasonable – effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria.
An interference is unreasonable if it effectively renders the land unavailable for ordinary use or enjoyment and satisfies certain criteria—e.g., when the interference was motivated entirely or almost entirely by malice.
An interference is not substantial if the plaintiff's unusual sensitivity causes him/her to regard the interference as offensive, annoying, or intolerable when a person with normal sensibilities would not.
107
Assuming a hearsay statement falls into one of the exceptions, can an opposing party impeach the non-present declarant?
When an out-of-court statement is admitted under a hearsay exception, the declarant can be impeached as if the declarant had testified at trial—eg, with a bad act that is probative of the declarant's character for (un)truthfulness.
108
;What is a shipment contract? When does the risk of loss shift to the buyer?
A contract that requires the seller to deliver the goods by third-party carrier but does not specify a delivery location is a shipment contract. Under such a contract, the risk of loss shifts to the buyer when the seller delivers the goods to the carrier and makes a proper contract for their shipment.
109
When the property owner breaches a construction contract before or during construction, what damages can the builder recover?
When the owner breaches a construction contract before or during construction, the builder can recover its lost profits (ie, expectation damages) plus any reasonably incurred costs. Post-breach costs are not recoverable.
110
Rule for the residual/catchall hearsay exception (3 elements)
A hearsay statement is admissible under the residual or catchall exception if (1) the statement is supported by sufficient guarantees of trustworthiness, (2) it is more probative on the point than any other evidence obtainable through reasonable efforts, and (3) the proponent gives the adverse party notice of the intent to offer the statement.
111
FRE 602 and 701: What can a lay witness testify to?
A lay witness (ie, nonexpert) can testify to any relevant matter of which the witness has personal knowledge—ie, knowledge based on firsthand observations and experiences. This is true even when other evidence could be used to establish the same facts. And though a witness's lack of certainty in recalling those facts may affect the weight (ie, believability) of that testimony, it does not affect its admissibility.
112
Impeaching a witness through specific instances of conduct (SICs): intrinsic vs extrinsic evidence
SICs can always be introduced intrinsically (ie, by questioning the witness being impeached about the SIC). But they can only be introduced extrinsically (ie, from other sources) if the SIC relates to a criminal conviction for a felony or crime of dishonesty.
113
Rule for wrongful birth (negligence)
A wrongful birth claim allows parents to recover for the birth of an unhealthy child if they can prove that (1) the doctor negligently failed to inform them of the substantial risk that their future child may have a birth defect and (2) had the parents known about that risk, the child would not have been conceived or born.
114
Long rule for wrongful birth actions (hint: based on negligence).
A negligence action based on a theory of wrongful birth can only be brought by a parent and requires proof that:
a) the parent and defendant had a patient-doctor relationship (duty)
b) the defendant negligently failed to diagnose or inform the parent of the substantial risk that his/her future child may suffer from a birth defect (breach)
c) had the parent known about that risk, the child would not have been conceived or born (causation) and
d) the parent suffered monetary loss due to the additional care and treatment of the child (damages).
115
Rule for wrongful life* claims
A wrongful life action alleges that an unhealthy child would not have been born absent a doctor's negligence. Most states do not permit wrongful life actions. In the states that do, the action can only be brought by or on behalf of the unhealthy child—not by the parents. Additionally, those states generally limit the child's recovery to expenses attributable to the disability—not all life expenses.
116
Effect of an exculpatory clause on a delegating party's liability
An exculpatory clause releases a party from liability for damages caused during the execution of the contract. This would include damages caused by a delegatee, so the party to be released cannot delegate his/her duties without the other party's consent.
117
Exculpatory clauses and delegating party liability
An exculpatory clause releases a party (eg, the tree-cutter) from liability for damages caused during the execution of the contract. Such a clause would effectively release that party from liability for damages caused by a delegatee (eg, the landscaper) as well.
This goes against the controlling principle that a delegating party is not released from liability for damages caused by a delegatee unless the other party to the contract (eg, the building owner) expressly agrees to a release.
118
What are the 4 public policy exceptions to waivers of the right to sue for tortious conduct (which is also called assumption of the risk)?
A person can expressly waive the right to sue over another person's tortious conduct. Such waivers are generally valid unless they violate public policy—ie, when the defendant (1) is the plaintiff's employer, (2) is a hotel or common carrier, (3) is a public servant or service, or (4) has substantially more bargaining power.
119
Available damages for the builder in construction contracts
Contract damages are meant to compensate the nonbreaching party by putting the party in the same position as if the contract had been performed. For example, if an owner breaches a construction contract during construction, the builder can recover any costs incurred up to that point plus the profits it would have earned. However, any costs the builder avoided (eg, by mitigation) will be subtracted from the total damages award.
120
Standard of care for medical specialists (e.g. orthopedists)
Most professionals are required to demonstrate the same knowledge, skill, and care as a normal member of the profession in a similar community. But medical specialists (eg, orthopedists) are held to a national standard.
121
When does an intended beneficiary's rights vest? (3)
Once an intended beneficiary's rights have vested, the contracting parties cannot modify or rescind the contract without the beneficiary's consent. Vesting occurs when the beneficiary (1) materially changes position in justifiable reliance on the rights created, (2) manifests assent to the contract at a party's request, or (3) files a lawsuit.
122
Is a delegator still liable under a contract?
When contractual obligations or duties are delegated, the delegator remains liable under the contract unless the other party to the contract expressly or impliedly agrees to release that party and substitute a new one (i.e., novation).
123
What are the two circumstances where delegation is not permitted?
Delegation of contractual duties is not permitted when (1) the other party to the contract has a substantial interest in having the delegating party perform or (2) the contract prohibits delegation.
124
Special rule statement for installment contracts under the UCC
Special rules apply to installment contracts for the sale of goods (e.g., windows), which are governed by the UCC. Under the UCC, an installment contract is defined as a contract in which the goods are to be delivered in multiple shipments, and each shipment is to be separately accepted by the buyer. Payment by the buyer is due upon each delivery unless the price cannot be apportioned.
125
What is the UCC's presumption towards whether a contract is fully or partially integrated?
Under the UCC, a court should presume that a written contract for the sale of goods is only partially integrated. As a result, evidence of additional consistent terms is admissible unless the court concludes that the parties certainly would have included those terms in the writing.
126
Rule for impracticability defense
A contracting party's duty to perform is discharged by impracticability when (1) an unanticipated or extraordinary event makes it impracticable for the party to perform, (2) the contract was formed under a basic assumption that the event would not occur, and (3) the party seeking discharge was not at fault in causing the event to occur. In a personal-services contract (e.g., contract to paint a portrait), impracticability can arise when the party who is to perform the contract—or a person whose existence is required for that performance—dies or becomes incapacitated. Impracticability also arises when the specific subject matter of the contract is destroyed or when performance becomes illegal after the contract was made.
127
UCC rules for goods sold at auction (both reserve and no-reserve auctions).
The UCC has special rules for goods sold at auction. If goods are auctioned in lots, each lot represents a separate sale. Whether the goods can be withdrawn once the auctioneer calls for bids depends on the type of auction:
at a reserve auction—which is presumed unless a no-reserve action is announced—the auctioneer may withdraw goods from auction prior to completion of the sale
at a no-reserve auction—which must be specifically announced—goods cannot be withdrawn from auction after the auctioneer calls for bids unless no bid is received with a reasonable time
In either type of auction, a bidder may retract a bid until the auctioneer announces the completion of the sale (e.g., at the fall of the auctioneer's hammer). However, the bidder's retraction will not revive any earlier bids.
128
Long rule for discharging contractual duties by accord and satisfaction.
One method of discharging contractual obligations is by an accord (new contract) and satisfaction (performance of the accord). An accord is created when the parties to a contract agree to give and accept something different in satisfaction of their existing contractual obligations. Since an accord is a new contract, it must be supported by consideration. Where the new consideration is worth less than what was agreed to in the original contract, it will be sufficient only if:
there is a good-faith dispute as to the amount owed (Choice D) or
the new consideration is of a different type than what was owed under the original contract (e.g., goods in lieu of cash).
The party accepting different performance can recover under the original contract until satisfaction occurs (i.e., the accord agreement is performed). But the original contract is discharged once satisfaction is complete.
129
130
What two things will waive/disclaim the implied warranty of merchantability?
The implied warranty of merchantability requires a merchant-seller to provide a buyer with merchantable goods. This warranty may be disclaimed for defects that an examination would have revealed if, before entering the contract, the buyer examined the goods as fully as desired or refused to examine them before entering the contract.
131
Under the UCC PER, what three forms of evidence can supplement the express terms of a contract (in order of priority)?
Under the UCC parol evidence rule, express terms of a written contract can be explained or supplemented by the following evidence (in order of priority): course of performance, course of dealing, and trade usage.
132
PER definition of course of dealing
Sequence of conduct concerning previous transactions between the parties that establishes a common basis of understanding for interpreting their conduct
133
PER definition of course of performance
Sequence of conduct relevant to understanding the current transaction between the parties if (1) the agreement involves repeated occasions for performance by a party and (2) the other party accepts performance without objection
134
Rule statement for offer and termination of offers
An offer is an objective manifestation by an offeror of a willingness to enter into an agreement that creates the power of acceptance in an offeree. The power to accept may be exercised until the offer is terminated. Termination can occur in many ways, including lapse and revocation. An offer will terminate by lapse if it is not accepted by the time stated in the offer or, if no time is stated, within a reasonable time. And a revocable offer will terminate by revocation if the offeror revokes the offer prior to acceptance.
135
When may a party to an illegal contract recovery restitution damages? (3)
A party to an illegal contract may recover restitution damages if that party conferred a benefit on the other party and (1) was justifiably ignorant of the facts that made the contract illegal, (2) was less culpable than the other party, or (3) withdrew before the contract's illegal purpose was achieved and did not engage in serious misconduct.
136
Does a delegator remain liable to the other contracting party?
A delegator remains liable to the other contracting party if the delegatee fails to perform unless the other party consented to a novation—i.e., the parties agreed to release the delegator from the contract and substitute the delegatee. However, mere consent to a delegation does not create a novation.
137
UCC special rules for auctions: When may a winning bidder avoid an auction sale or paying the price of a last good faith bid? (2)
A winning bidder may avoid an auction sale or pay the price of the last good-faith bid if the auctioneer (1) knowingly accepted a bid by the seller or on the seller's behalf or (2) procured the seller's bid to drive up the price. However, the winning bidder may not do so if the seller bid at a forced sale or gave notice reserving the right to bid.
138
In real-estate contracts requiring delivery of possession, what damages are the buyer entitled to for late delivery?
In real-estate contracts requiring delivery of possession, late delivery is a breach that entitles the buyer to expectation damages measured by the fair market rental value of the property for the time the buyer was denied possession.
139
Rule for enforceability of charitable subscriptions
A charitable subscription—i.e., a written promise to contribute money or property to a charitable institution—is enforceable on promissory-estoppel grounds without proof of detrimental reliance or substantial injustice. All that is needed is proof that the promisor reasonably expected to induce reliance on the promise.
140
When an assignment of rights is made without consideration, in what four circumstances can it not be revoked?
An assignment of rights made without consideration is a gratuitous assignment and can be revoked by the assignor unless (1) the obligor has already performed, (2) a document symbolizing the assigned right has been delivered, (3) a written assignment signed by the assignor has been delivered, or (4) the assignee has detrimentally relied on it.
141
Rule statement for impracticality (3) and available damages
Performance is discharged by impracticability when (1) an unforeseen event occurs, (2) nonoccurrence of the event was a basic assumption of the contract, and (3) the party seeking discharge did not cause the event. Impracticability also discharges the duty imposed by option contracts. However, restitution damages are recoverable for benefits conferred before performance was discharged.
142
When may donee beneficiaries sue the promisee?
An intended beneficiary can enforce the contract. However, the intended beneficiary of a gift promise (i.e., a donee beneficiary) may generally sue only the promisor (i.e., the person who made the promise) because the promisee is under no obligation to the donee beneficiary. But the donee beneficiary may also sue the promisee if: a) the promisee should have reasonably foreseen reliance and b) the donee beneficiary justifiably and detrimentally relied on the contract.
143
Nonperformance in installment contracts: rule for total vs partial breach
Nonperformance accompanied by a repudiation of an installment contract generally constitutes a total breach. But if a) the only remaining duty is held by the breaching party and b) is for the payment of money in unrelated installments, then nonperformance is merely a partial breach. In this case, the nonbreaching party is only entitled to the value of the installments nonperformed thus far.
144
In a land sale contract, what happens when the seller fails to deliver marketable title to the buyer by the closing date?
In a land-sale contract, the seller is required to deliver marketable title to the buyer at the closing date. Failure to do so constitutes a breach of the contract. But if the seller conveys the land within a reasonable time after the closing date, the buyer cannot withhold payment. That is because time is ordinarily not of the essence in a land-sale contract unless the circumstances indicate that performance by that date is important. So a court can order specific performance.
145
Rule for the contract formation defense of undue influence
Front
Back
A contract induced by undue influence is voidable by the assenting party. Undue influence arises when a party assents to a contract due to unfair or excessive persuasion by someone who dominates or holds a special relationship of trust and confidence with the assenting party. Persuasion is unfair or excessive if it seriously impairs the assenting party's ability to exercise free and competent judgment. The following factors are often considered in making this determination:
1. unfairness of the resulting bargain (eg, sale of home worth $250,000 for $100,000);
2. unavailability of independent advice (eg, attorney unavailable to discuss sale);
3. susceptibility of the assenting party (eg, mental illness, under hospice care)
146
Nuance for seller and buyer implied obligations in requirement or output contracts
Contracts for exclusive dealing in the type of goods concerned, such as requirement or output contracts, carry with them an implied obligation by the seller to use its best efforts to supply the goods and by the buyer to promote their sale.
147
Illegal Contracts: Rule for when a party may receive expectation (4) or restitution (3) damages
An illegal contract arises when one or both parties' purpose, formation, or performance is against the law—such as the rancher's agreement not to report the veterinarian's income as required by state law. Such contracts generally are void and there is no remedy for breach. However, an illegal contract is enforceable for the full amount of the nonbreaching party's expectation damages if:
A. the nonbreaching party was justifiably ignorant of the facts that made the contract illegal*
B. the nonbreaching party substantially performed and lacked an illegal purpose
C. the contract can be easily separated into legal and illegal parts or
D. the contract is illegal due to a violation of a licensing requirement designed only to raise revenue.
However, restitution damages may be an alternative form of recovery. A party to an illegal contract can recover such damages if that party conferred a benefit on the other party and:
A. was justifiably ignorant of the facts that made the contract illegal*
B. was less culpable than the other party or
C. withdrew before the contract's illegal purpose was achieved and did not engage in serious misconduct.
148
Under the UCC, can identical cross offers create a contract? If so, why?
Under the UCC, a sale-of-goods contract can be made in any manner sufficient to show the parties' agreement—even if they negotiate in an unusual way that makes the moment of acceptance uncertain. For example, identical cross-offers can operate as an offer and acceptance only if the parties understood them to have the effect of forming a contract.
149
When is a unilateral mistake grounds to avoid a contract? (2)
Unilateral mistake is not grounds to avoid a contract unless (1) the mistake would make enforcement of the contract unconscionable or (2) the nonmistaken party caused, or knew or had reason to know of, the mistake.
150
Rule for restitution damages
When a breaching party is unjustly enriched as a result of the breach, the nonbreaching party can seek restitution (i.e., the value of the benefit conferred on the breaching party) as an alternative to expectation damages. However, this is not permitted when the work giving rise to the unjust-enrichment claim has been fully performed and the breaching party's only remaining obligation is payment of the contract price.
151
When is a nonbreaching party entitled to consequential damages for losses arising from special circumstances? (2)
The nonbreaching party is entitled to consequential damages for losses arising from its special circumstances only if the breaching party (1) knew about the special circumstances or (2) could have reasonably foreseen the harm, in light of the special circumstances, that would result from a breach.
152
Under the UCC, what kind/category of damages is a breaching buyer entitled to for the value of advance payments it had made to the seller?
Under the UCC, a breaching buyer is entitled to restitution damages for the value of any advance payments it made to the seller, minus the amount of the seller's damages.
153
In a contract for the sale of land, what can the buyer recover in damages from a seller who refuses to sell or sells it to someone else first?
A buyer who enters a contract for the sale of land expects to receive the property (worth its fair market value) in exchange for the contract price. If the seller breaches by refusing to sell, the buyer can recover for loss of bargain (ie, lost expectation), which amounts to the property's fair market value on the date of the breach minus the contract price.
154
Definition for a) condition precedents and b) condition subsequents and their effect on performance.
performance under that agreement can be made contingent upon a condition. There are two types of conditions:
Condition precedent – where a party's duty to perform arises upon the occurrence or nonoccurrence of an uncertain future event (ie, the event creates the duty)
Condition subsequent – where a party's duty to perform is released upon the occurrence or nonoccurrence of an uncertain future event (ie, the event extinguishes the duty)
155
What is an offer lacking a present intent to be bound? Why? When would such offer become legally binding (2)?
An offer is a communication that expresses a present intent to be legally bound to a contract and gives power to the recipient to conclude a contract by acceptance. However, there is no present intent to be legally bound if the offer is illusory because it imposes no obligation on or causes no legal detriment to the offeror. As a result, acceptance of an offer that is illusory does not form a contract. But such an offer will become legally binding if:
A. circumstances change such that the offer imposes obligations on both parties and
B. the offer is accepted after the change in circumstances.
Once an offer is legally binding, it can be accepted to create an enforceable contract. Under the UCC, an offer to buy goods can be accepted by shipping or promising to ship conforming goods.
156
UCC SoF: Rule for confirmatory memos
Under the statute of frauds, a contract for the sale of goods of $500 or more is only enforceable if it is in a writing signed by the party against whom enforcement is sought. The UCC relaxes these requirements in transactions when both parties are merchants so that the statute of frauds is met as to both parties if one party sends a written confirmation and the recipient does not object in writing within 10 days. The written confirmation must:
A. provide a reasonable basis to believe a contract was formed (eg, memo confirming the order)
contain the quantity of the goods or a means to determine it (eg, 12 pairs of vortex-lined ski gloves) and
B. contain a signature or other identification sufficient to bind the sender (eg, sender's fax number)
157
Under the UCC statute of frauds, when must modifications be in writing?
Under the UCC statute of frauds, contracts for the sale of goods for $500 or more must be in a writing that states the quantity of goods to be sold (eg, five cabinets) and is signed by the party against whom enforcement is sought (eg, the buyer). However, modifications of a contract that falls within and satisfies this statute generally need not be in writing unless they affect the subject matter of the contract or the quantity of goods to be sold. If it's for something like date of delivery, it need not be in writing.
158
When a contracting party delegates his/her duties by forming a separate contract with the delegatee, who can the other party sue for breach?
When a contracting party delegates his/her duties by forming a separate contract with the delegatee, the other party to the original contract becomes an intended beneficiary of that separate contract. The intended beneficiary can then sue the delegatee (in addition to the delegator) in the event of a breach.
158
How does a foreclosure sale affect interests that are junior to the foreclosing mortgage?
A foreclosure sale destroys all interests that are junior to the foreclosing mortgage, so the junior interest holders are necessary parties who must be given notice of the foreclosure. Otherwise, their interests are preserved post-sale.
158
Constructive adverse possession rule
Constructive adverse possession arises when the adverse possessor acquired title to an entire property through faulty deed. This is met when an adverse possessor (1) enters the property under color of title—eg, a facially valid deed that describes the entire property—and (2) actually possesses a reasonable portion of the property for the statutory period. Constructive adverse possession gives the person title to the entire property.
159
Rule for the admissibility of compromise offers and negotiations?
Compromise offers and negotiations are inadmissible when offered to (1) prove or disprove the validity or amount of a disputed claim or (2) impeach by a prior inconsistent statement or contradiction.
159
What duty of reasonable care does a landowner owe to undiscovered or unanticipated trespassers?
A land possessor owes no duty of reasonable care to unforeseeable plaintiffs (eg, undiscovered or unanticipated trespassers).
159
Rule for liability for invasion of privacy based on public disclosure of private facts
Liability for invasion of privacy based on public disclosure of private facts arises when:
A. the defendant publicly disclosed facts about the plaintiff's private life
B. that disclosure would be highly offensive to a reasonable person
C. the disclosed facts are not of legitimate public interest and
D. the disclosure caused the plaintiff harm.
However, the defendant is privileged to disclose such facts if (1) the disclosure was in a fair and accurate report of a public meeting and (2) the meeting dealt with matters of legitimate public interest (ie, newsworthy topics).
159
Strict products liability: what is the risk-utility test for defective products (2 elements)? Then, how does assumption of the risk in contributory negligence jurisdictions affect liability?
A plaintiff can prevail on a strict products liability claim if the defendant is a commercial supplier (eg, manufacturer) and its defective product caused the plaintiff harm. Under the risk-utility test, a product is defective by design when:
A. the design creates a foreseeable risk of harm and
B. that risk could have been mitigated by a reasonable alternative design (eg, a modification that reduces the risk for a reasonable cost).
However, in jurisdictions that apply the traditional rules of contributory negligence (as seen here), assumption of the risk completely bars a plaintiff's recovery for strict products liability when the plaintiff (1) knows of the product's risk of harm and (2) voluntarily uses the product despite that risk.
159
An assignee is subject to any claims or defenses that...? (2)
An assignee assumes all of the assignor's contractual rights that exist at the time of the assignment. However, the assignment is subject to any claims or defenses that (1) the obligor could have raised before receiving notice of the assignment or (2) stem from the assignor's failure to perform.
159
Rule for conversion (to chattels), and what recovery plaintiff is entitled to
Conversion is an intentional exertion of dominion or control over chattel that so seriously interferes with the owner's right of control that the owner should recover the fair market value of the chattel at the time of the conversion.
160
Rule for duty of care for land possessors
Land possessors owe a duty of reasonable care when they know or should know that an activity on the land poses an unreasonable risk of physical harm (ie, bodily harm or property damage) to others. A land possessor who breaches this duty and causes the plaintiff physical harm is liable for negligence.
161
What two types of parties can a plaintiff bring strict product liability claims against?
Strict products liability claims can only be brought against commercial suppliers or sellers. This means that the defendant must be in the business of selling or otherwise distributing the type of defective product that harmed the plaintiff. Accordingly, those in the business of providing services are not subject to strict products liability.
162
When does the Best Evidence rule apply? (3 situations)
The best evidence rule only applies when a document's contents are at issue—ie, when (1) the document is used to prove the happening of an event, (2) the document has a legal effect, or (3) the witness is testifying based on facts learned from the document.
163
Rule statement for the best evidence rule. Also, when does it only apply as a result?
The best evidence rule generally requires that an original or reliable duplicate of a recording, writing, or photograph (collectively referred to as "document") be produced to prove its contents. As a result, this rule only applies when a document's contents are at issue—ie, when:
A. the document is used to prove happening of an event (eg, video of bank robbery)
B. the document has a legal effect (eg, audiotape of oral contract) or
C. the witness is testifying based on facts learned from the document (eg, x-ray image)
164
3 theories of liability under NIED
Negligent infliction of emotional distress (NIED) has three theories of recovery: (1) zone of danger, (2) bystander, and (3) special situation.
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Rule for bystander liability under NIED
Liability under the bystander theory arises when:
A. the defendant negligently causes serious bodily injury to a close relative of the plaintiff–bystander
B. the plaintiff contemporaneously perceives (ie, sees or hears) that event and
C. the plaintiff consequently suffers serious emotional distress.
166
FRE 902(1): When are public documents self-authenticating?
Domestic public documents bearing a government seal and signature attesting to their truth are self-authenticating.
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FRE 803(10): Absence of public records hearsay exception rule
Under the absence of public records exception, evidence that a diligent search failed to locate a public record is admissible to prove that (1) the public record does not exist or (2) a matter regularly kept in public records did not occur. However, this evidence can only be admitted through witness testimony or self-authenticating evidence (see FRE 902(1)).
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What obligation does a life tenant have to pay taxes, when that life tenant occupies the land?
A life tenant has the obligation to pay ordinary taxes on the real property, but only to the extent that the life tenant receives a financial benefit from the property. When the life tenant occupies the land, the financial benefit is measured by its fair rental value.
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Can a joint tenant devise their interest during life? What about in a will or through intestacy?
A joint tenant can sever the joint tenancy by conveying his/her interest during life to another, thereby creating a tenancy in common.
A joint tenant cannot devise his/her property interest and it will not pass by intestacy because, at death, the joint tenant's interest ceases to exist and is automatically absorbed into the surviving joint tenants' interests.
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Due to the right of survivorship, what happens to a joint tenant's interest when they die?
Due to the right of survivorship, a joint tenant's interest ceases to exist upon his/her death and is automatically absorbed into the surviving joint tenants' interests.
