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Bar Contracts > 6) Defenses > Flashcards

6) Defenses Flashcards

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1
Q

defenses: result

A

1) defense in a breach of k suit (to use to make the k go away)

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2
Q

defenses: result: exception

A

unconscionability different

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3
Q

infancy/incapacity: result

A

defense

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4
Q

misrepresentation: result

A

defense

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5
Q

duress: result

A

defense

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6
Q

undue influence: result

A

defense

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7
Q

public policy: result

A

defense

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8
Q

defenses: CL or UCC?

A

both (UCC as supplement)

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9
Q

infancy/incapacity? CL or UCC?

A

both (UCC as supplement)

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10
Q

misrepresentaiton: CL or UCC?

A

both (UCC as supplement)

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11
Q

duress: CL or UCC?

A

both (UCC as supplement)

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12
Q

undue influence: CL or UCC?

A

both (UCC as supplement)

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13
Q

unconscionability: CL or UCC?

A

both (UCC as supplement)

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14
Q

public policy: CL or UCC?

A

both (UCC as supplement)

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15
Q

defenses (list)

A

1) infancy/incapacity
2) misrepresentaiton
3) duress
4) undue influence
5) unconscionability
6) public policy

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16
Q

incapacity: kinds

A

1) infancy

2) mental incompetence

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17
Q

infancy: rule

A

minor can k, but voidable AT MINOR’S OPTION

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18
Q

infancy: effect of marriage/emancipation

A

none (majority of js)

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19
Q

infancy: effect of misrepresenting minor’s age

A

none (majority of js)

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20
Q

infancy: result if disaffirms k

A

1) minor must return goods received
2) minor NOT liable for damages
3) minor NOT liable for reasonable value of use (exception)

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21
Q

infancy: result if disaffirms k: exception

A

necessaries: CAN recover reasonable value of goods/services (in quasi-k)

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22
Q

infancy: ratification (inc result)

A

1) after turn 18
2) can be express or implied
3) result: now bound and can’t disaffirm anymore

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23
Q

ratification: implied

A

continuing to use the thing after turning 18 / becoming competent

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24
Q

infancy: def

A

under 18

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25
Q

mental incompetence: def

A

can’t reasonably understand the transaction at time of k

26
Q

mental incompetence: rule

A

if mentally incompetent AT TIME ENTERED k, then can disaffirm the k

27
Q

incompetence: result if disaffirms k

A

1) must return goods received
2) YES liable for damages
3) YES liable for reasonable value of use

28
Q

difference: incompetence vs infancy

A

after disaffirming k, infant not liable for damages or reasonable value of use, but incompetent is

29
Q

incompetence: ratification (inc result)

A

1) after becomes competent
2) can be express or implied
3) result: now bound and can’t disaffirm anymore

30
Q

incomptence: necessaries include

A

legal rep for incompetency proceedings

31
Q

misrepresentation: types

A

1) fraudulent misrep
2) nonfraudulent misrep
3) fraudulent nondisclosure

32
Q

misrep: fraudulent misrep: elements

A

1) misrepresentation
2) state of mind
3) materiality of misrep
4) reasonable reliance on the misrep

33
Q

misrep: (elements): misrepresentation: def

A

D’s assertion inconsistent w existing facts

34
Q

misrep: (elements): misrepresentation: examples

A

1) oral or written misrep
2) conduct (ex. concealment)
3) half-truth

35
Q

misrep: (elements): misrepresentation: NOT a misrep

A

1) broken promise (has to be inconsistent w EXISTING facts)

2) opinion/guess

36
Q

misrep: (elements): fraudulent state of mind: elements

A

1) scienter AND

2) intent to mislead

37
Q

misrep: (elements): fraudulent state of mind: scienter: def

A

D made assertion knowing it to be false OR had no idea if true or false

38
Q

misrep: (elements): state of mind: intent to mislead: def

A

D made assertion for the purpose of misleading aggrieved party OR knowing substantial likelihood to mislead

39
Q

misrep: (elements): materiality: kinds

A

either objective OR subjective suffiicent

40
Q

misrep: (elements): materiality: objective (def)

A

assertion is likely to induce a reasonable person to enter a k

41
Q

misrep: (elements): materiality: subjective (def)

A

the party making the assertion had reason to know it was likely to induce the particular aggrieved party to enter the k

42
Q

misrep: (elements): reasonable reliance: def

A

must be reasonable that you relied on the misrep

43
Q

misrep: (elements): reasonable reliance: examples of when NOT met

A

1) aggrieved party has independent knowledge that st is false
2) aggrieved party knows the sayer is unreliable
3) no reasonable person would believe
4) could have easily ascertained truth by cursory inspection of goods

44
Q

misrep: non-fraudulent misrep: elements

A

1) misrep
2) material
3) reasonable reliance
4) state of mind DIFFERENT

45
Q

misrep: non-fraudulent misrep: state of mind: kinds

A

1) negligent

2) innocent

46
Q

misrep: non-fraudulent misrep: state of mind: negligent

A

D (liar) would have known assertion was false if he had exercised reasonable case

47
Q

misrep: non-fraudulent misrep: state of mind: innocent

A

D (liar) made an assertion not in accord w existing facts

48
Q

misrep: fraudulent nondisclosure: elements

A

1) material
2) reasonable reliance
3) DUTY OF DISCLOSURE AND FAILURE TO FULFILL

49
Q

misrep: fraudulent nondisclosure: when is there a duty to disclose?

A

default: no duty
1) material facts unlikely to be discovered by other party exercising ordinary care AND

2) rship of trust OR
made assertion that was true and now isn’t OR
good faith would require

50
Q

duress: elements

A

1) threat
2) wrongful
3) no reasonable choice but to succumb (economic cases)

51
Q

duress: elements: wrongful: kinds

A

1) threat of crime or tort
2) threat of crim prosecution or bad faith civil process
3) threat of bad faith breach (economic duress)

52
Q

duress: no reasonable choice but to succumb: examples

A

no substitutes,
threatened party would have to breach own ks
acquiescing to threat then suing for damages is inadequate for harm caused

53
Q

undue influence: elements

A

1) unfair persuasion AND

2) other party vulnerable to the persuasion

54
Q

undue influence: unfair persuasion: Factors

A

need 1+:

1) unusual/inappropriate time to discuss
2) consumation of t. at unusual place
3) insistent demands: immediately
4) extreme emphasis on consequences of delay
5) multiple persuaders
6) no 3rd party advisors for target
7) “no time to consult”

55
Q

undue influence: other party vulnerable: examples

A

mental infirmity (age/illness)
vulnerable to recent trauma/event
rship of trust/confidence

56
Q

unconscionability: elements

A

1) procedural unconscionability AND

2) substantive unconscionability

57
Q

unconscionability: procedural u. : def

A

bargaining process created absence of meaningful choice for aggrieved party (won’t have if 2 powerful companies)

58
Q

unconscionability: substantive u.: def

A

k terms are unreasoanbly favorable to one party to the k

59
Q

unconscionability: result

A

court MAY:

1) refuse to enforce k
2) enforce, but w/o the bad clause
3) limit APPLICATION of the bad clause to avoid u. result

60
Q

public policy: kinds

A

1) subject of k is specifically prohibited by law (prostitution)
2) k formed for purpose of committing crime or tort
3) performance would violate values/freedoms from state

Bar Contracts (9 decks)

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