Avoiding Enforcement Flashcards
A minor can disaffirm at ___ during minority and a ___ ___ after reaaching majority age
anytime
reasonable time
Under the Modern Rule, K entered into by minors are ____
voidable
The K is legally effective until minor ____
disaffirms
only the minor or the minors ____ can avoid the K
representitive
If the minor wants to disaffirm, what do they have to do with the item in question?
If in possession, return it
If not, no need to return and still entitled to refund
T/F: Minors can disaffirm even if they misrepresent their age
True, but the seller may have a tort remedy
T/F: Minors are entitled to a full refund
True
What is the trend that Prof. Wright wants us to know about allowing a minor to recover?
The trend is that the minors recovery will be offset (deducted) by the depreciation of the item or services
Define ratification
Ratification terminates the ability to disaffirm a K entered into by a minor
How can ratification happen?
By words or conduct (keep item) and only after reaching age of majority
What are the exceptions to a minor being able to avoid enforcement of a K?
Doctrine of necessaries
Statutory exceptions such as child support, adoptions, military, education loans,
Define doctrine of necessaries
Under the D.O.N, A minor will not be able to avoid the enforcement of a K for food, clothing, shelter.
When a minor is emancipated, how are they treated regarding contracts?
They are treated as an adult and liable on K’s as an adult would be
K entered into my mentally incapacitated persons are ____
voidable
To determine is a minority ratified after reaching majority age, what would you look at?
if they ratified in a reasonable time
Define disaffrim
To get out of the K
What is the GR for a mental incapaticated person resciding a K?
The person must be able to show that they were unable to understand the nature and consequences of their actions at the time the K was entered in to
Define duress
Duress is a wrongful or improper act or threat that leaves a party with no reasonable alternative but to acquiesce. Wrongful is unlawful. Improper is unethical or immoral.
K entered into by a mental incapacitated person are ___
voidable
The person hurt by the mentally incompaticiated person must be returned to ____
the status quo, unless the person acted in bad faith to take advantage of the MIncap person
If a person enters in a K when they are mentally incapaticiated, they must disaffirm within a reasonable time of ____
coming into a lucid state
What is the Majortity (Cognitive) Rule for MIncap?
The person lacked the capacity to understand the nature and consequences of conduct at the time of the transaction
What is the minority (Volitional) test for MIncap?
The person was unable to act in a reasonable manner toward the transaction and they other party had reason to know
What are the two remedies for duress?
recission of the K
restore the party to status quo (make them whole again)
Define undue influence
Undue influence is an improper persuasion of a weaker party by a stronger party. Improper is unethical or immoral.
What are the factors of undue influcnes (dont need all of these)
IT/I/M/NT
Discussion or consumation of transaction at unusal or inappropiate time or place
insistence upon immediate decision
multiple persuaders
No time to consult with advisors
Define misrepresentation
Misrepresentation is an assertion that is not in accordance with the facts. The assertion must be fraudulent or material. Fraudulent means the party had knowledge of its falsity and material means it induced the other party to enter into the agreement. There must be reliance by the other party and the reliance must be justified
What is the GR for disclosure?
There is no duty to disclose
What are the exceptions to the general rule for disclosure?
Duty/Change/Special/Prop/Trust
1, duty imposed by statutue
- where circumstances changed and the OG statements are no longer true
- special knowledge that is hard for the other party to obtain
- transactions in real property where there is a material defect that would affect the value & the other party wouldnt know about it
- when the parties have a fidiciary relationship
Define economic values (engaging)
A policy that affects parties engaging in commerce
Revenue raising statute are enacted to ___?
raise money
What is the GR for violation of a revenue raising statues?
A k is enforceable for a violation of a revenue raising statute unless the statute states otherwise
In violation of a revenue raising statute, a breaching party may be subject to __
sanctions, but the K is still enforceable
Regulatory statutes are enacted to ____?
protect the public
What is the GR for violation of regulatory statutues?
The violating party would suffer sanctions under the statute and the contract may be unenforceable.
What can a court do with a K that is unconscionable?
If a K or any clause w/n the K is unconscionable, the court can refuse to enforce all or part of the K
What is a non ancillary non compete covenant?
It is not attached to another agreement and it stands alone
What is the GR for non ancillary non compete covenants?
They are unenforceable
What is the GR for ancillary non compete covenants?
MAY be enforceable
What is an ancillary non compete covenant?
It is attached to another agreement
What is the test for an ancillary non compete covenant?
- Does it protect the legitimate interest of the employer?
- Time
- Geography
- Nature of Restriciton
