CML - Module 5-7 Flashcards
if a contract is not valid?
- doesn’t meet all requirements
- void = court will not enforce it
- contract does not exist
requirements (1-4) of a valid contract?
- parties must have contractual capacity
- parties must have serious intention to contract
- they must comm their intention with each other
- parties must be of the same mind (no mistakes / misunderstandings)
general rule of capacity?
everyone has contractual capacity – can enter into legal / binding agreements they want with no assistance or limitation
people with limited capacity?
- minors
- married persons
- insolvents
- intoxicated persons
- mentally ill persons
general rule for persons married ICOP?
both spouses have full capacity to contract with regard to the joint estate without consent of the other. consent is, however, sometimes needed.
alienate definition?
sell, mortgage, lease out, give away
cede definition?
manner of alienating used for intangibles
mortgage definition?
borrow money to purchase a property and you will mortgage the property as security for that loan
pledge definition?
use something a security
formal consent definition?
written, signed, two witnesses
surety definition?
person borrows money. their spouse can sign stand surety for the loan, so that if they can’t pay it the borrower can claim from their spouse
formal consent needed for ICOP?
- to alienate / mortgage immovables
- to enter into contract as a credit receiver (can still ratify)
- to bind themselves a surety
when is formal consent not required ICOP?
(if it is part of spouse’s ordinary course of trade)
- to enter into contract as a credit receiver
- to bind themselves a surety
written consent definition?
written, signed, no witnesses
written consent needed for ICOP?
- to alienate, cede, pledge financial assets / inv assets
- to alienate / pledge capital assets
- withdraw money held in other spouse’s name
(can all get consent through ratification)
informal consent?
verbal, cannot be proven
when is informal consent needed for ICOP?
- alienating / pledging household furniture, effects
- receiving money due to the other spouse as a result of their trade, prize, inheritance
- large donations from joint estate
(can get consent through ratification)
if consents overlap?
- use most onerous consent
- requiring the most effort, difficulty
if spouse enters into a contract without required consent?
- contract = null and void
- if third party did not / could not have known that the required consent had not been given, then it is valid, to protect the innocent third party.
if one spouse unreasonably withholds consent?
the court can order that no consent is required from them
if the contracting spouse knew that the other would not consent?
- if estate suffers a loss, the other will get their share of this amount back at dissolution of the marriage
consent in marriage OCOP?
- each party has unrestricted capacity with regard to their own estate only, not the other’s
- not liable for debts incurred by the other spouse, except ones they are jointly liable for household necessities
contractual capacity of an u18 person when they get married?
no contractual capacity, but can become a major when married, regardless of age, and will gain full contractual capacity unless in COP.
what is guardianship?
the control over and admin of the estate of the minor, as well as assistance in the perf of legal acts. gained by both m&f when married, will keep even if divorced