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UBE - Contracts > Set 1 > Flashcards

Set 1 Flashcards

1
Q

Offer

A

promise, terms, communication

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2
Q

Terms

A

parties, subject matter, price, quantity

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3
Q

Past Consideration

A

promise was made in recognition of a significant benefit

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4
Q

Battle of the Forms

A

both merchants, changes included unless: materially alter original terms, original offer limits acceptance, offeror objects

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5
Q

Mutual Mistake

A

existing when contract formed, basic assumption, material impact, adversely affected party did not assume risk.

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6
Q

Unilateral Mistake

A

existing when contract formed, basic assumption, material impact, adversely affected party did not assume risk, unconscionability OR non-mistaken party failed to disclose

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7
Q

Misrepresentation

A

fraudulent (a false assertion of fact made knowingly or recklessly + intent to mislead); induced asset, justifiably relied

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8
Q

Undue Influence

A

unfairly persuades (certain relationships where innocent party susceptible to persuasion)

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9
Q

Duress

A

improperly threatened + no meaningful choice; subjective test (actually feel duress)

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10
Q

Misunderstanding

A

material term (2 or more interpretations), different meaning each side, neither party knows/should know of confusion

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11
Q

Statute of Frauds

A

marriage, suretyship, one year, UCC $500, real property; writing and signature;

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12
Q

SOF Exception: Sale of Land

A

payment, substantial improvement, possession

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13
Q

SOF Exception: UCC $500

A

Both merchants; confirmatory letter/memo meets SOF to other party; other party knowingly receives memo and doesn’t object in writing within 10 days = the contract is enforceable against receiving party

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14
Q

Unconscionability

A

so unfair no reasonable person would agree to it; court may: refuse to enforce, strike unconsciousable portion, or limit unconsciousable terms.

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15
Q

Procedural Unconscionability

A

Bargaining process unfair

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16
Q

Substantive Unconscionability

A

Actual terms unfair

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17
Q

Accord

A

Agreement to accept alternative performance in satisfaction of the existing obligation

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18
Q

Satisfaction

A

Completion of alternative performance

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19
Q

Parol Evidence Rule (“PER”)

A

Extrinsic evidence (oral or written communications) before written contract is generally inadmissible for contradicting contract’s terms

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20
Q

PER Exceptions

A

modifications after contract; ambiguity; separate deal; usual performance and dealing between (UCC); condition precedent; fraud

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21
Q

Material Breach

A

Party who fails to substantially perform; non-breaching party can withhold promised performance and pursue remedies (damages)

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22
Q

Substantial performance

A

substantially complies with implied/constructive condition; less likely if party intentionally furnishes materially different services; damages = contract price - cost of obtaining performance

23
Q

Acceptance of Goods (UCC)

A

Buyer: confirms acceptance after reasonable opportunity to inspect or silence

24
Q

Revoking Acceptance (UCC)

A

Can revoke w/in reasonable time of discovering defect if: (1) defect substantially impairs the goods’ value, AND (2) buyer accepted on reasonable belief defect would be cured and isn’t, excusably ignorant of the defect, or reasonably relied on seller’s assurance goods conformed.

25
Q

Perfect Tender

A

goods + delivery

26
Q

Seller’s Ability to Cure

A

If buyer notifies of imperfect tender, seller has opportunity to cure if: (1) seller gives buyer notice of intent to cure AND (2) time not expired OR seller has reasonable grounds to believe sending nonconforming goods acceptable.

27
Q

Divisible Contract

A

units divisible into distinct parts

28
Q

Installment Contract

A

goods delivered in multiple shipments; parties cannot vary definition

29
Q

Installment Contract - Non-Conforming Shipment

A

substantially impairs the value of shipment to buyer + segment cannot be cured

30
Q

Installment Contract - Remaining Shipment

A

substantially impairs value of entire contract

31
Q

condition

A

Occurs before contractual rights/obligations created

32
Q

Excuse of condition

A

untimely, waiver, estoppel, excessive forfeiture, prevention

33
Q

Impracticability

A

unforeseeable event makes performance extremely difficult; nonoccurrence of event was basic assumption at time of contract; party seeking discharge not at fault

34
Q

Frustration of Purpose

A

unforeseeable event destroys party’s purpose for entering contract; nonoccurrence of event was basic assumption at time of contract; party seeking discharge not at fault

35
Q

Third Party Beneficiary

A

parties intend performance by one party to benefit third person who is not party to contract; 3rd party can enforce

36
Q

Third-Party Beneficiary – Vesting

A

sue, accept benefits, detrimental reliance

37
Q

Contract Prohibiting Assignment

A 
prohibits =  takes away right to assign, but not power the assign
Invalidates = takes away right and power to assign
38
Q

Gratuitous Assignment

A

Irrevocable if (1) obligor performed, (2) assignee received written claim/tangible object signifying right to collect, or (3) detrimental reliance by assignee.

39
Q

Delegation

A

one party (delegator) delegates duties owed to another party (oblige) to a third party (delegatee); delegator remains liable for delegatee’s performance;

40
Q

Non-Delegable Duties

A

(1) duties involve personal judgment or skill, (2) delegation materially changes obligee’s expectancy; (3) special trust in delegator, or (4) a contractual provision restricts delegation.

41
Q

Anticipatory Repudiation – CL

A

clearly and unequivocally (words or acts) indicates non-performance; promisor party can retract repudiation until other party acts in reliance of repudiation, accepts the repudiation, or already filed lawsuit.

42
Q

Anticipatory Repudiation – UCC

A

unequivocally refuses performance or fails to provide adequate assurances w/in reasonable time (not exceed 30 days); can demand assurances (in writing) if reasonable grounds to be insecure about other party’s ability to perform

43
Q

Remedy Anticipatory Repudiation (CL, UCC)

A

nonbreaching party: (1) sue immediately, (2) suspend own performance and demand performance, (3) cancel K, or (4) wait for date of performance and sue for breach.

44
Q

Expectation Damages

A

intended to put nonbreaching party in same position as if K performed; calculated with reasonable certainty

45
Q

Partial Performance - Damages

A

work performed + expectation damages for work not yet performed

46
Q

Defective Performance - Damages

A

Sale of goods = difference between value of the goods as warranted and actual value of tendered nonconforming goods

Real estate = difference between K price and market value

47
Q

Economic Waste

A

cost to fix/complete construction clearly disproportional to economic benefit/utility gained as a result; if breach is willful + only completion gives benefit of bargain, court can award damages to fix/complete

48
Q

Consequential Damages

A

Damages arise from unique, special circumstances of parties; must be reasonably foreseeable to breaching party; not recoverable unless breaching party knew about possibility of unforeseeable consequential damages.

49
Q

Incidental Damages

A

commercially reasonable expenses

50
Q

Liquidated Damages

A

reasonable at time of K + actual damages uncertain

51
Q

Mitigating Damages

A

avoid or mitigate damages by taking steps not involving undue risk, expense, or inconvenience.

52
Q

Restitution

A

restores to party benefit conferred on other party; nonbreaching party cannot recover if it fully performed and only awaiting payment

53
Q

Reliance Damages

A

intended to put nonbreaching party in same position as if K not performed; reasonable out-of-pocket expenses

54
Q

Risk of Loss – Identified Goods

A

if goods are damaged/destroyed and no breach, risk of loss on seller until satisfying delivery obligations

Shipment K—risk of loss passes to buyer when seller gives possession of goods to carrier and makes proper contract for shipment

Destination K—risk of loss passes to buyer when seller tenders goods at the place specified in K.

UBE - Contracts (1 decks)

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