6) Defenses Flashcards
defenses: result
1) defense in a breach of k suit (to use to make the k go away)
defenses: result: exception
unconscionability different
infancy/incapacity: result
defense
misrepresentation: result
defense
duress: result
defense
undue influence: result
defense
public policy: result
defense
defenses: CL or UCC?
both (UCC as supplement)
infancy/incapacity? CL or UCC?
both (UCC as supplement)
misrepresentaiton: CL or UCC?
both (UCC as supplement)
duress: CL or UCC?
both (UCC as supplement)
undue influence: CL or UCC?
both (UCC as supplement)
unconscionability: CL or UCC?
both (UCC as supplement)
public policy: CL or UCC?
both (UCC as supplement)
defenses (list)
1) infancy/incapacity
2) misrepresentaiton
3) duress
4) undue influence
5) unconscionability
6) public policy
incapacity: kinds
1) infancy
2) mental incompetence
infancy: rule
minor can k, but voidable AT MINOR’S OPTION
infancy: effect of marriage/emancipation
none (majority of js)
infancy: effect of misrepresenting minor’s age
none (majority of js)
infancy: result if disaffirms k
1) minor must return goods received
2) minor NOT liable for damages
3) minor NOT liable for reasonable value of use (exception)
infancy: result if disaffirms k: exception
necessaries: CAN recover reasonable value of goods/services (in quasi-k)
infancy: ratification (inc result)
1) after turn 18
2) can be express or implied
3) result: now bound and can’t disaffirm anymore
ratification: implied
continuing to use the thing after turning 18 / becoming competent
infancy: def
under 18
mental incompetence: def
can’t reasonably understand the transaction at time of k
mental incompetence: rule
if mentally incompetent AT TIME ENTERED k, then can disaffirm the k
incompetence: result if disaffirms k
1) must return goods received
2) YES liable for damages
3) YES liable for reasonable value of use
difference: incompetence vs infancy
after disaffirming k, infant not liable for damages or reasonable value of use, but incompetent is
incompetence: ratification (inc result)
1) after becomes competent
2) can be express or implied
3) result: now bound and can’t disaffirm anymore
incomptence: necessaries include
legal rep for incompetency proceedings
misrepresentation: types
1) fraudulent misrep
2) nonfraudulent misrep
3) fraudulent nondisclosure
misrep: fraudulent misrep: elements
1) misrepresentation
2) state of mind
3) materiality of misrep
4) reasonable reliance on the misrep
misrep: (elements): misrepresentation: def
D’s assertion inconsistent w existing facts
misrep: (elements): misrepresentation: examples
1) oral or written misrep
2) conduct (ex. concealment)
3) half-truth
misrep: (elements): misrepresentation: NOT a misrep
1) broken promise (has to be inconsistent w EXISTING facts)
2) opinion/guess
misrep: (elements): fraudulent state of mind: elements
1) scienter AND
2) intent to mislead
misrep: (elements): fraudulent state of mind: scienter: def
D made assertion knowing it to be false OR had no idea if true or false
misrep: (elements): state of mind: intent to mislead: def
D made assertion for the purpose of misleading aggrieved party OR knowing substantial likelihood to mislead
misrep: (elements): materiality: kinds
either objective OR subjective suffiicent
misrep: (elements): materiality: objective (def)
assertion is likely to induce a reasonable person to enter a k
misrep: (elements): materiality: subjective (def)
the party making the assertion had reason to know it was likely to induce the particular aggrieved party to enter the k
misrep: (elements): reasonable reliance: def
must be reasonable that you relied on the misrep
misrep: (elements): reasonable reliance: examples of when NOT met
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
misrep: non-fraudulent misrep: elements
1) misrep
2) material
3) reasonable reliance
4) state of mind DIFFERENT
misrep: non-fraudulent misrep: state of mind: kinds
1) negligent
2) innocent
misrep: non-fraudulent misrep: state of mind: negligent
D (liar) would have known assertion was false if he had exercised reasonable case
misrep: non-fraudulent misrep: state of mind: innocent
D (liar) made an assertion not in accord w existing facts
misrep: fraudulent nondisclosure: elements
1) material
2) reasonable reliance
3) DUTY OF DISCLOSURE AND FAILURE TO FULFILL
misrep: fraudulent nondisclosure: when is there a duty to disclose?
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
duress: elements
1) threat
2) wrongful
3) no reasonable choice but to succumb (economic cases)
duress: elements: wrongful: kinds
1) threat of crime or tort
2) threat of crim prosecution or bad faith civil process
3) threat of bad faith breach (economic duress)
duress: no reasonable choice but to succumb: examples
no substitutes,
threatened party would have to breach own ks
acquiescing to threat then suing for damages is inadequate for harm caused
undue influence: elements
1) unfair persuasion AND
2) other party vulnerable to the persuasion
undue influence: unfair persuasion: Factors
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”
undue influence: other party vulnerable: examples
mental infirmity (age/illness)
vulnerable to recent trauma/event
rship of trust/confidence
unconscionability: elements
1) procedural unconscionability AND
2) substantive unconscionability
unconscionability: procedural u. : def
bargaining process created absence of meaningful choice for aggrieved party (won’t have if 2 powerful companies)
unconscionability: substantive u.: def
k terms are unreasoanbly favorable to one party to the k
unconscionability: result
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
public policy: kinds
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
