Contract (BAR) Flashcards
Elements to Duress (K Defense)
1) Threat
2) wrongful in nature
3) No alternatives
Element of misrepresentation (K Defense)
1) representation inconsistent with EXISTING facts
2) Wrongful state of mind
3) Material
4) Reliance
Elements for Undue Influence (K defense)
1) Unfair persuasion (bad time/place/emphasis/no advisors)
2) Vulnerable party
What are the defenses to contract formation
- Infancy/incompetency
- Duress
- Misrepresentation
- Undue Influence
- Unconscionability
- Public Policy
Elements of unconscionability defense
1) Procedural unconscionability
2) substantive unconscionability
Examples of K void against public policy?
Contract for illegal items, committing crimes, committing torts, violation of values and freedoms.
Expectation damages formula
Start with: Loss of value of breaching parties performance
+incidental/consequential costs
—————————————————
-payments or value from breaching party
-cost saved as result of breach
What are the limitations to Expectations Damages
1) unforeseeable damages
2) non-mitigated damages
3) damages that cannot be calculated
4) Damages far exceed market value
Reliance Damages
Restores party to position before K
1) expenditures made in preparation of performance or actual performance
LESS
2) losses the aggrieved party would have suffered even if the K was performed
Restitutionary Damage
benefit conferred on breaching party; OR, increase in value.
When are restitution damages NOT allowed
when the aggrieved party has fully performed.
when is specific performance appropriate
1) unique objects; or
2) real property
When is specific performance not appropriate
1) personal services (employment)
2) K requiring ongoing cooperation (landlord tenant dispute)
What are the exceptions to the assignment rule?
1) Materially alters obligations/risks
2) Personal interest
3) Violate law public/policy
4) anti assignment clause (still has assignment power)
What are the exceptions to the delegation rule?
1) personal interest
2) K prohibits delegation
