Chapter 12- Contract Performance Flashcards
Accord and Satisfaction
An agreement and payment (or other performance) between two parties, one of whom has a right of action against the other.
Anticipatory Repudiation
An assertion or action by a party indicating that he or she will not perform an obligation that the party is contractually obligated to perform at a future time.
Assignment
The act of transferring to another all or part of one’s rights arising under a contract.
Bilateral Mistake
A mistake that occurs when both parties to a contract are mistaken about the same material fact.
Breach of Contract
The failure, without legal excuse, of a promisor to perform the obligations of a contract.
Commercial Impracticability
A doctrine under which a court may excuse the parties from performing a contract when the performance becomes much more difficult or costly due to an event that the parties did not foresee or anticipate at the time the contract was made.
Condition
A qualification, provision, or clause in a contractual agreement. The occurrence or nonoccurrence of the condition creates, suspends, or terminates the obligations of the contracting parties.
Condition Precedent
In a contractual agreement, a condition that must be met before a party’s promise becomes absolute.
Consequential Damages
Special damages that compensate for a loss that is not direct or immediate.
Delegation
The transfer of a contractual duty to a third party.
Discharge
The termination of one’s obligation under a contract.
Impossibility of Performance
A doctrine under which a party to a contract is relieved of his or her duty to perform when performance becomes objectively impossible or totally impracticable (through no fault of either party).
Incidental Beneficiary
A third party who incidentally benefits from a contract but whose benefit was not the reason the contract was formed.
Intended Beneficiary
A third party for whose benefit a contract is formed and who can sue the promisor if the contract is breached.
Liquidated Damages
An amount, stipulated in a contract, that the parties to the contract believe to be a reasonable estimate of the damages that will occur in the event of a breach.
Mitigation of Damages
A rule requiring a plaintiff to do whatever is reasonable to minimize the damages caused by the defendant.
Mutual Rescission
An agreement between the parties to cancel their contract, releasing the parties from further obligations under the contract.
Novation
The substitution, by agreement, of a new contract for an old one, with the rights under the old one being terminated.
Penalty
A sum named in a contract as punishment for a default.
Performance
The fulfillment of one’s duties arising under a contract.
Quasi Contract
A fictional contract imposed on parties by a court in the interests of fairness and justice.
Reformation
A court-ordered correction of a written contract so that it reflects the true intentions of the parties.
Restitution
An equitable remedy under which a person is restored to his or her original position before formation of a contract.
Scienter
Knowledge by the misrepresenting party that material facts have been falsely represented or omitted with an intent to deceive.
Specific Performance
An equitable remedy requiring exactly the performance that was specified in a contract. Usually, it is granted only when money damages would be an inadequate remedy and the subject matter of the contract is unique (for example, real property).
Statute of Frauds
A state statute under which certain types of contracts must be in writing to be enforceable.
Tender
A timely offer or expression of willingness to pay a debt or perform an obligation.
Third Party Beneficiary
One for whose benefit a promise is made in a contract but who is not a party to the contract.
Unilateral Mistake
A mistake that occurs when one party to a contract is mistaken as to a material fact.
Voluntary Consent
Knowledge of, and genuine assent to, the terms of a contract.
If you do not voluntary consent to a contract, you may
Rescind or cancel the contract. You may cancel a contract to which you have not genuinely assented
Mistakes of fact occur in two forms. What are they?
Unilateral and mutual. Mistakes of fact may be unilateral (made by one party) and mutual (made by both parties)
What are the elements of fraud?
Scienter, relied on misrepresentation, misrepresentation must concern material fact
NOT party being under 21 years of age
What is covered by the Statute of Frauds?
sale of land, sale of a new car, sale of right to trespass
NOT sale of a textbook (below $500)
The transfer of contract rights to a third person is known as
An assignment;
occurs when contract rights are transferred to a third party.
With respect to a contract, a condition is
An event, the occurrence or nonoccurrence of which triggers the performance of a contractual obligation or terminates an existing obligation
The most common way to discharge, or terminate, contractual duties is
By performance
Most contractual duties are discharged by performance
When a party to a contract breaches the contract, the other party is legally entitled to:
Monetary damages
Because the nonbreaching party has been harmed, he or she is entitled to monetary damages
Which of the following is not an equitable remedy?
Money damages. This is a remedy at law, not an equitable remedy
In order to prevent plaintiffs from recovering twice, plaintiffs are required under the common law to:
elect which remedy they wish to pursue.
Plaintiffs must elect which remedy they wish to seek in order to prevent double recovery
