SP25 Final (1/2) Flashcards
(44 cards)
R159 Misrepresentation
a misrepresentation is an assertion that is not in accord with the facts
R164 Assent induced by fradulent/material misrepresentation
if assent is induced by a fradulent or material misrepresentation upon which the recipient is justified in relying, the K is voidable by the recipient
R162 Fradulent and material def
(1) fradulent if the maker intends his assertion to induce a party’s assent, and the maker
a. knows or believes the assertion is not in accord with the facts (not true)
b. does not have confidence that he states or implies the truth of the assertion
c. knows he does not have the basis he states or implies for the assertion
(2) material if the assertion would likely induce a reasonable person’s assent or maker knows it would likely induce
R168 assertion of opinion
(1) an assertion is one of opinion if it expresses a belief, without certainty, as to the existance of a fact or expresses only a judgment as to quality, value, authenticity, or similar matters
(2) the recipient of an opinion as to facts not disclosed/known to the recipient may treat it as an assertion
- that the facts knows to the person are not incompatible with his opinion, or
- that he knows facts sufficient to justify the opinion
R169 when reliance on opinion not justified
Not justified unless recipient:
(a) has a relationship of trust and confidence and recipient is reasonable in relying
(b) reasonably believes person with opinion has special skill, judgment, or objectivity with respect to the subject matter
- e.g. Vokes v. Murray: dance classes
(c) is for some special reason particularly susceptible to a misrepresentation of the type involved
R160 concealment
action intended or known to be likely to prevent another from learning a fact is equivalent to an assertion that the fact doesn’t exist
R161 Nondisclosure/half truth
silence is fine, but in certain situations do need to disclose, and silence will be treated as an assertion that the fact doesn’t exist.
(1) if you know you need to disclose to correct some previous statement you made
(2) if you know other party has mistaken impression as to basic assumption of K, and you know disclosure would correct their understanding, and if failure to disclose would be failure to act in good faith
(3) if you know the other party is mistaken abt something in the writing, and disclosure would correct the mistake
(4) existing relationship of trust between parties
R177 undue influence
(1) unfair persuasion of a party under the domination of the person exercising persuasion, OR who by virtue of relation between them, is justified in assuming the person will not act in a manner inconsistent with his welfare
(2) if assent induced by undue influence–> K voidable by victim
(3) if assent induced by undue influence by one not a party to the transaction, voidable by victim unless other party to transaction in good faith and w/o reason to know gives value or materially relies
R175 when duress by threat makes K voidable
- if party’s assent induced by an improper threat that leaves victim no reasonable alternative, K is voidable by victim
- if party’s assent is induced by a nonparty, K is voidable by victim unless the other party in good faith and w/o reason to know of duress gives value or materially relies
No reasonable alternative
i. goods cannot be obtained elsewhere
ii. cannot take normal recourse for breach
economic duress
(1) one party threatens to breach, (2) threatened party cannot cover their obligation with another source, (3) ordinary remedy for breach inadequate
R176 improper threat
(1) Threat is improper [even if K terms fair] if:
- what is threatened is a crime or tort (or would be if resulted in obtaining property)
- what is threated is a criminal prosecution
- what is threated is use of civil process and threat made in bad faith
- threat is a breach of duty of good faith and fair dealing
(2) threat is improper if the resulting exchange is not on fair terms AND
- threatened act would harm recipient and not benefit threatening party
- effectiveness of the threat is increased by prior unfair dealing
- what is threatened is otherwise a use of power for illegitimate means
Capacity
infants–> minor only incurs voidable K duties until they turn 18; can repudiate Ks entered as a minor within reasonable time or ratify them
mental illness–> person incurrs voidable K duty if by reason of mental illness or defect
a) he doesn’t understand nature and consequence of transaction
b) he is unable to act reasonably in relation to transaction and other party has reason to know of his condition
intoxicated person–> person oncurs voidable K duties by entering transaction where other person has reason to know that due to intoxication
a) he is unable to understand the nature and consequences of the transaction or
b) he is unable to act in a reasonable manner in relation to the transaction
Procedural unconscionability
unfairness in formation of K bc of unequal bargaining power; an absence of meaningful choice for one party
1. inequality of bargaining poewr
2. no real negotiation
3. fine print—> lack of voluntariness
substantive unconscionability
unfairness in K terms
1. terms are unreasonably favorable
2. shock the conscience
3. no business interest in including term, just makes other party’s life harder
R208 Unconscionable terms
If a K term is unconscionable at the time K made, a ct
(1) may refuse to enforce K
(2) may refuse to enforce term and enforce rest of K
(3) may so limit the application of any unconscionable term to avoid unconscionable result
UCC 2-302 Unconscionable terms
if ct finds K/K clayse was unconscionable at the time it was made, ct
(1) may refuse to enforce K,
(2) enforce remainder of K w/o unconscionable term
(3) may limit application of any unconscionable clause to avoid unconscionable result
when it appears to ct that K is unconscionable, parties will be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the ct in making its determination
adhesion Ks
while procedurally unconscionable (no bargaining), substantively terms are fine
Illegality R512
bargain is illegal if its formation or performance is criminal, tortious, or otherwise opposed to PP
- if both parties involved in illegality, neither can recover
PP R178
promise or term is unenforceable on grounds of PP if legislation provides it is unenforceable
If no legislative mandate, term is unenforceable if the interest of its enforcement is clearly outweighed by PP against the enforcement of such terms:
For enforcement
1. parties justified expectations
2. any forfeiture that would result if enforcement was denied
3. any special public interest in the enforcement of the particular term
Against enforcement
1. strength of policy as manifested by legislation or judicial decisions
2. likelihood that refusal to enforce will further policy
3. seriousness of any misconduct involved to extent it was deliberate
4. directness between misconduct and term at issue
Where does PP come from R179
- legislation
- need to protect public welfare
PER generally
where parties to a K intended the written agreement to be a full and final expression of their agreement, other written or oral agreements made prior or simultaneously with the writing are inadmissible for purposes of changing terms
R209 Integrated agreements
(1) integrated agreement is a writing that is a final expression of one or more terms of an agreement
(3) where parties reduce an agreement to writing that is complete and specific and reasonably appears complete = integrated agreement unless other evidence suggests otherwise
R210 completely and partially integrated agreements
(1) completely integrated agreement is an integrated agreement adopted by the parties as a complete and exclusive statement of terms
(2) partially integrated agreement is an integrated agreement other than a completely integrated one
writing itself cannot prove its own completeness
