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UBE - Contracts > 5. Defences > Flashcards

5. Defences Flashcards

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1
Q

What is required for infancy as defence?

A

Under 18 years of age

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2
Q

What remedies are available for infancy?

A

Voidable

Infant can affirm contract (after 18)
- Expressly
- Implicitly (fail to disavow contract after 18)
- By conduct (encourage other party to perform)
=> To be governed by NEW terms (NOT original terms)

Infant can disaffirm contract (before/after 18)
- Infant to pay necessaries (food/shelter/clothing/medical care) for Infant’s health/education (quasi-contract liability)

UNLESS Infant lied about his age => Other party can void contract based on fraud

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3
Q

What is required for mental incapacity as defence?

A

NOT able to understand the contract’s nature/significance

Able to understand the contract BUT acted unreasonably + Other party knows he acted unreasonably

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4
Q

What remedies are available for mental incapacity?

A

Adults (voidable)

  • Affirm contract (complete recovery/during lucid interval)
  • Disaffirm contract (legal rep appt/during lucid interval)

Children (void)
- Pay necessaries (food/shelter/clothing/medical care) for child’s health/education (quasi-contract liability)

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5
Q

What is required for intoxication as defence?

A

Voidable

1) Intoxicated party incapable of understanding the contract’s nature/significance
2) Other party had reason to know of intoxication

Void

1) Intoxicated party incapable of understanding the contract’s nature/significance
2) Other party had NO reason to know of intoxication

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6
Q

What remedies are available for intoxication (if voidable contract)?

A

Affirm
- After recovery

Disaffirm
- After recovery

Recover necessaries

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7
Q

What is required for duress as defence?

A

Improper threat towards innocent party to procure assent (Physical duress)

Withhold innocent party’s economic needs (Economic duress)

1) Threat to reduce party’s property/finance
2) Innocent party has NO available adequate means to prevent threatened loss

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8
Q

What remedies are available for duress?

A

Voidable

  • Affirm
  • Disaffirm
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9
Q

What is required for undue influence as defence?

A

1) Undue susceptibility to pressure
2) Excessive pressure
3) Confidential/Caregiver relationship (most cases)

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10
Q

What is required for mistake as defence?

A

Mutual

1) Both parties made mistake
2) Basic assumption of ‘existing’ fact
3) Material to contract
4) Party seeking avoidance did NOT assume risk of mistake

Unilateral

1) One party made mistake
2) Innocent party knew/should have known of mistake
3) Material to contract
4) Party seeking avoidance did NOT assume risk of mistake

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11
Q

What are examples of assuming risks of mistake?

A

Value

Party seeking avoidance was in position to know better

Both parties knew the assumption was doubtful

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12
Q

What remedies are available for mistake?

A

Voidable (by mistaken party)

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13
Q

What is required for misrepresentation?

A

Misrep

  • Spoken
  • Written
  • Non-disclosure (maybe)

Fraudulent

1) Inducement by fraud (knowledge of untrue info)
2) Justifiable reliance
- Even if reasonable care could reveal misrep
- Even if failure to read contract

Material

1) Reasonably knew innocent party would be induced
2) Justifiable reliance

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14
Q

What remedies are available for misrepresentation?

A

Voidable
- Affirm/Disaffirm

Rescission

Breach remedies

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15
Q

What is required for illegality as defence?

A

Illegal consideration/subject matter => Void

  • UNLESS Plaintiff is not aware
  • UNLESS Defendant is aware
  • UNLESS Neither is aware

Illegal purpose => Voidable (by party seeking avoidance)

  • Party not aware
  • Party aware + not facilitate purpose + no moral turpitude
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16
Q

What is required for unconscionability as defence?

A

(E.g. Big company vs average consumer)

Unfairness in bargaining procedure (at time of contract)

  • Boilerplate clauses (shift risk to another)
  • Adhesion (take it or leave it) (not procure necessary goods unless agreement)
  • Exculpatory clauses (release from intentional wrongful/negligent act)
  • Limit remedies (fails of its essential purpose)
17
Q

What remedies are available for unconscionability?

A

Not enforce contract

Enforce contract
- NOT unconscionable clause

Limit enforcement of any clause
- Avoid unconscionable result

18
Q

What is required for misunderstanding/ambiguity as a defence?

A

1) At least 2 possible meanings in term

2) Parties’ awareness (subjective)
- Both/Neither aware => NO contract
- One aware/Both intended same meaning => Contract (term based on innocent party’s reasonable meaning)

UBE - Contracts (21 decks)

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