Contract 24-30 Flashcards
Procedural Unconscionability
vs.
Substantive Unconscionability
Unconscionability usually occurs if the contract/term is BOTH substantively and procedurally unconscionable.
Procedural: When one party to the contract has a superior bargaining position over the other and uses that power to their advantage.
Substantive: When the contract contains terms that are obviously unfair and one-sided in favor of the person with the superior bargaining power.
Priority: Medium
Under the Statute of Frauds, which types of contracts require a signed writing to be valid?
Marriage contracts.
Suretyships (unless the main purpose exception applies).
Contracts that cannot be fully preformed in 1 year.
Contracts for the sale of real property.
Promises to pay an estate’s debt from the personal funds of the Executor/Administrator.
Contracts for the sale of goods for $500 or more.
Priority: HIGH
In what situations will a contract that violates the Statute of Frauds still be enforceable?
Full performance;
Judicial acknowledgment: the party admits to the agreements in pleadings/testimony; OR
Estoppel: reasonable and foreseeable detrimental reliance on a promise (only some jurisdictions).
Priority: HIGH
Contracts for the sale of goods for $500 or more MUST be in writing.
What are the four exceptions to this rule?
Merchant’s Confirmatory Memorandum.
Goods accepted or Paid for.
Custom Made Goods.
Admission during judicial proceeding.
Priority: HIGH
What satisfies the writing requirementunder the Statute of Frauds?
The writing MUST:
Be signed by the party to be charged;
Identify the subject matter of the contract;
Indicate that a contract has been made by the parties; AND
State the essential terms with reasonable certainty.
*An agreement DOES NOT need to be in one writing, it may consist of several writings.
Priority: HIGH
What are the exceptions to the Parol Evidence Rule?
To correct a clerical error or typo.
To establish a defense against formation.
To interpret vague or ambiguous terms.
To supplement a partially integrated writing.
*The parol evidence rule DOES NOT apply to subsequent agreements.
*Merger clause is evidence that the writing is complete on its face.
Priority: HIGH
What are the two instances where a Condition Precedent may be excused?
A protected party’s failure to cooperate or make a good faith effort.
Waiver – a protected party voluntarily gives up the protection of the condition.
Priority: HIGH
