Mixed Contracts Flashcards
(24 cards)
What is the consequence when a condition against assignment is waived?
It cannot be enforced again.
How is a contract modified:
- U.C.C.
- Common Law
UCC: good faith modifications are allowed.
Common Law: consideration is required for any modification.
When a buyer accepts non-conforming goods delivered by a seller, what is the rate they must pay?
The contract rate for the conforming goods even if the nonconforming goods are more expensive.
What does reformation require?
- A prior valid agreement that
- Has been incorrectly reflect in writing
- Established by clear and convincing evidence.
The parol evidence rule inapplicable to reformation.
What is a U.C.C. seller’s right to cure when performance is overdue?
- If the seller has reasonable grounds to believe that tender would be acceptable
- If he notifies the buyer
Then,
- He may have reasonable time to substitute a conforming tender.
What does a perfect tender require?
That the goods match what is contract for and are delivered on the day that it is due.
What is a condition precedent for there to be a third-party beneficiary?
A valid underlying contract.
What is the proper measure of damages in a construction contract?
Profits expected + Cost expended
(up until time of the breach)
When can a request for adequate assurance result in repudiation?
When obligor expresses doubt of their ability to perform, the obligee may demand adequate assurances. If assurances are not forthcoming within a reasonable time, then, the absence of assurances may be treated as a repudiation.
What type of breach is a failure to perform a contractual obligation ontime?
A non-material breach if a time of the essence clause is not stated in the contract. A non-material breach does not let the damaged side out of the agreement.
Who bears the risk of loss for new construction?
When a building is destroyed without fault, the builder bears the risk of loss. It is a breach of contract if a builder walks away from the project.
Who bears the risk of loss for renovations?
The owners of the building bears the risk of loss. When a building during renovation or remodeling is destroyed without fault, it excuse builder’s duty to perform. The builder can walk away from the project without breaching the contract.
The mailbox rule only applies to?
An acceptance of an offer that is sent first (no other response was sent besides the acceptance)
Differentiate:
FOB seller’s place of business v. FOB buyer’s place of business
FOB Sellers: Risk of loss is on the buyer during transit.
FOB Buyer’s: Risk of loss on seller during transit.
What are the elements of a bona fide purchaser?
- Pays Value
- Takes in good faith
And
- Takes without notice of any encumbrances
What is the exception to the statute of frauds requirement for suretyships/guarantees?
There is no need for the statute of fraud formalities when the main purpose of the surety is for the benefit of the provider of the surety. If the main benefit is to the grantor of the surety, the statute of frauds does not apply.
What is the enforceability of contracts with:
Mutual Mistake v. Unilateral Mistake
Mutual: If both parties mistaken of a material party of agreement, then rescission of the contract is appropriate.
Unilateral: The contract is enforceable unless non-mistaken party knew or should have known of the other parties mistake.
When a debt is barred by the statute of limitations, how can it be enforceable?
When there is a new promise to pay an amount, then the amount in new promise is binding.
What is an aleatory condition?
Where the promisee right to cancel is dependent on a condition outside his control, the promise is not illusory and the agreement will be enforceable. Contract is enforceable
What are the requirements for an accord and satisfaction?
- A genuine dispute
- The parties agree to a new performance
And
- Upon performance, the old contract is discharged.
Differentiate:
Subjective v. Objective Impossibility
…on the duty to perform
Subjective impossibility: a person cannot do it; however, it does not excuse the duty to perform.
Objective impossibility: nobody on earth can do it and it does excuse duty to perform.
What is a novation?
It replaces an obligation to perform with a new obligation or it replaces a party to an agreement with a new party. A novation effectively discharges the duties contracted for under the original agreement.
With the > $500 statute of frauds requirement, what is the amount a measurement of?
The total contract price
When must adequate assurances be provided pursuant to the U.C.C.?
Within 30 days.
