Contract Law Flashcards
complete
The three requirements for a contract to be formed
- Agreement between parties
- Intention to be legally bound
- Consideration
What is consideration?
The ‘price’ paid by each party in return for the obligations assumed by the other party
When does an agreement typically arise?
When a party accept’s the other’s offer
What are the terms used for the person who makes the offer and the recipient?
Offeror and offeree
What does a counteroffer do to an offer?
Terminates
Term for an invitation for another party to negotiate by making an offer
Invitation to treat
What are some examples of invitations to treat?
- Advertisements
- Menu
- Listing goods on internet
- Shop window displays
Contract in which a party makes an offer which can be accepted by another party performing an act (e.g. advertisement for reward if a piece of jewellery is found)
Unilateral contract
Contracts that must be in writing
- Contracts of guarantee
- Contracts to sell land
- Consumer credit agreements
Examples of contracts by deed:
- Promises where nothing is received in return (gift)
- Conveyance of land
- Power of attorney
- Non-disclosure agreements
Timeframe a claim must be brought within for breach of:
- Simple contract
- Contract by deed
- 6 years
- 12 years
The two forms of consideration which can form a contract
- Bargained-for exchange of something of legal value
- Substitute for consideration (e.g. promissory estoppel, part performance)
What can you presume is present in commercial/business arrangements but not in domestic/social situations?
Intention to enter into contract
How can an offer be indirectly revoked?
Offeree receives correct information from a reliable source of acts of the offeror which would indicate to a reasonable person that the offeror no longer wishes to make the offer
Until which point can an offeror revoke their offer?
Until acceptance
A contract in which the parties to one contract enter into or promise to enter into another contract
Collateral contract
When does a unilateral offer become irrevocable?
Once performance has begun
How is a bilateral offer accepted?
By performance or a promise
How is a unilateral offer accepted?
By performance
When is an offeree’s rejection effective?
Once received by offeror
What is the usual test for a rejected offer?
Would a reasonable person believe the original offer has been rejected
When is an offer terminated under lapse of time?
When the offeree fails to accept within the period specified in the contract or, if not specified, a reasonable period
Conditions for offer termination by operation of law
FatDDS
- Failure of any condition contained in the offer
- Death of offeror or offeree
- Destruction of the proposed contract’s subject matter
- Supervening illegality
What is the term for an acceptance of an offer that seeks to vary the terms of an offer?
Counteroffer
What quality must an acceptance have to not be a counteroffer?
Unqualified
If an acceptance is qualified it will constitute a counteroffer
If no method is stipulated by the offerer, what is the method of acceptance?
Any reasonable manner and by any medium reasonable under the circumstances
What is the exception to a method of acceptance stipulated by the offeror?
If a method is different but no less advantageous (e.g. stipulated second class post but sent by first)
When must an offeree in a unilateral contract notify the offeror?
A reasonable time after performance has been completed
What is the postal rule?
Acceptance by post creates a contract at the moment of posting (even if letter does not arrive) UNLESS:
- The letter is not properly addressed/stamped
- Acceptance by post not reasonable
- Offer stipulates acceptance is not effective unless received
Which three groups lack capacity to be bound?
- Minors (under 18)
- Intoxicated
- Mental incapacity
Term for contract entered into by disabled person/minor etc. where they can decide a contract won’t be binding on them
Voidable
Act that provides a contract entered into by a minor for necessary goods or services at a reasonable price is binding
Sale of Goods Act 1979
Act that provides if a party transfers property (e.g. car) to a minor, a court may require its return if just and equitable
Minors’ Contracts Act 1987
In which case is a contract entered into by a person lacking mental capacity or intoxicated voidable?
If the other party knew
Type of consideration where a party promises to do something in future
Executory consideration
Finding a lost dog in a unilateral contract encompasses which two actions?
Acceptance and consideration
Who must consideration move from?
The promisee
What type of value do the following relate to?
- Sufficient
- Adequate
- Legal
- Economic
Performance of an existing duty or a promise based on an act already done is considered
Not sufficient consideration
What is the exception in which performance of an existing contractual duty owed to the person making the promise is considered sufficient consideration?
If performance of an existing contractual duty confers a practical benefit on the party offering additional consideration
Performance or promise to perform an existing contractual duty owed to a third party other than the promisor is
Sufficient consideration
Acts performed or promises made prior to a contract being formed are not sufficient consideration. What is the exception?
Implied understanding of payment
Equitable principle relating to situations where it’s unfair for a party to go back on a promise
Promissory estoppel
Term for those who are party to a contract
In privity
In which cases can a third party not in privity enforce a contract?
- Contract expressly provides they can
- Contract purports to convey a benefit on them
When a principle authorises someone to enter a contract on their behalf
Agency
Term for a contractual right being transferred to a person outside the contract (usually benefit only, not burden)
Assignment
Term that gives an insurer the same rights as the policyholder
Subrogation
Two forms of terms in a contract
- Condition
- Warranty
What is being described?
A term that goes to the root of the contract. If breached, the innocent party has the option to terminate the contract and claim damages
Condition
What is the phrase used in commercial/business agreements that clarifies there is no intention to be bound?
Subject to contract
What is the rule that provides ambiguous language is interpreted against the party relying on it?
Contra proferentem rule
When is a postal acceptance and rejection effective?
Acceptance effective when posted.
Rejection effective when received.
Who wins in a battle of the forms?
The person who fires the last shot
(sends the last set of terms that were not objected)
An act or forebearance of one party or the promise thereof
Consideration
An agreement not to sue is an example of
Not doing something
Forebearance from acting
Term for an act or forebearance promised in the future
Executory consideration
Who must consideration move from?
The promisee
The act that gives third parties a limited right to enforce a contract to which they are not a party if they are named in the contract and the term to be enforced is for their benefit
Contracts (Rights of Third Parties) Act 1999
Consideration must be sufficient but need not be…
Adequate
Consideration that is too vague to measure and too difficult to enforce. May render a contract insufficient
Illusory consideration
When would a party not be able to enforce a promise of more money for the job they were doing
Performance of an existing contractual duty owed to the person making the promise
When can performance of an existing contractual duty be good consideration?
- If it confers a practical benefit on the promisor
- The promisor is a third party
Acts performing (or promise of) prior to forming a contract is not sufficient consideration. What is the exception?
Implied understanding of payment
Three conditions of the exception of implied understanding of payment under past consideration
Request, Renumerated, Enforceable
- Act done at promisor’s request
- Parties understood act was to be remunerated
- Payment/benefit must have been legally enforceable had the promise been made in advance
Six exceptions to the part-payment rule
DUCT 2 Different
- Debt is disputed in good faith
- Unliquidated (uncertain) claims
- Composition with creditors
- Third party makes the payment
- Payment at different place or earlier time
- Payment made by different means
Three conditions for promissory estoppel
Existing, Inequitable, Promisee
- Clear promise not to rely on existing rights
- It must be inequitable for the promisor to go back on their promise
- Promisee must have altered their position in reliance on the promise
Requirements for a third party to enforce a contract they were not party to
- Contract expressly provides they may enforce the term
- A term purports to confer a benefit on them AND it is foreseen in the contract
- Third party must be expressly named or be a member of an expressly named benefitting class
Three situations excluded from Contracts (Rights of Third Parties) Act 1999
ACE
- Articles of association (contract between company and shareholders)
- Contract term expressly states it will not apply
- Employment contracts
Exceptions to the requirement of privity
A - Anal
A - Alligator
S - Seeking
C - Curvaceous
T - Turtle
- Agency
- Assignment
- Subrogation
- Collateral contracts
- Trusts
Requirement for a trust to avoid problems of privity
There must be an irrevocable intention to benefit the third party
What is taken into consideration to determine whether a statement is a term or representation?
SIS
- At what stage in the contract was it made
- Importance of the statement
- Whether the party making the statement had any specialist knowledge
Category for a term that is unclear between being a condition or warranty
Innominate term
Terms incidental or collateral to the main terms. Breach does not repudiate the contract but damages may be claimed
Warranties
How is an innominate term determined as a condition or warranty?
Significance to the contract
If breach results in innocent party losing whole benefit of contract = condition
If breach is incidental to overall contract = warranty
Rule that helps to decide whether evidence of terms outside the written contract can be taken into account to alter the written terms
Parol Evidence Rule
Common term in written contracts that provides the written agreement constitutes the entire agreement between parties
Entire Agreement Clause
When will a court not uphold the Entire Agreement Clause
If it is used by a party to avoid liability for misrepresentation
Three acts that imply terms regarding goods and/or services
- Sale of Goods Act 1979
- Supply of Goods and Services Act 1982 (Business-Business)
- Consumer Rights Act 2015 (Trader-Consumer)
In which 3 cases will the court imply a contract term?
- When it is necessary to give the contract business efficacy
- Based on custom and usage in the industry
- Based on a regular and consistent course of dealings between the parties
Court will enforce a contract with incomplete agreements and vague terms if it has
Sufficient certainty
Term of a contract that attempts to exclude (or limit) the liability of one of the contracting parties
Exclusion clause
Three issues considered for an exclusion clause to be enforceable
Procedural & Legal
- Clause must be incorporated
- Clause must be properly drafted so it is construed (interpreted) as excluding liability effectively
- Clause must not be prohibited by statute
Three ways a clause is incorporated into a contract
- By signature
- By notice
- Through industry custom or previous dealing
The defence that means a party didn’t understand the contract they signed and there was a fundemental difference between what they signed and what they thought they signed
Non est factum
When must an exclusion clause be brought to the other party’s attention?
Before or at the time the contract is concluded
The rule that means if there is any ambiguity when interpreting an exclusion clause, the courts will interpret against the party seeking to rely on the clause
Contra proferentem rule
Act that regulates exclusion clauses in business-to-business contracts
Unfair Contracts Terms Act 1977 (UCTA)
Under UCTA, what happens to clauses that attempt to exclude liability for personal injury or death caused by negligence?
Automatically void
Under UCTA, what happens to clauses that attempt to exclude liability for loss (such as property damage) caused by negligence?
Void unless reasonable
Under UCTA, what is the usual way exclusion clauses are regulated?
(Not including personal injury and death)
Must be reasonable to be enforced
Which test considers the following:
- Strength of the parties’ bargaining positions
- Whether there was any inducement received by customer to agree to the term
- Whether customer knew or ought to have known about the term
- Whether it was reasonable to conclude compliance with such a condition was practicable
- Whether goods were processed to customer’s special order
UCTA test of reasonableness
Who has the burden to prove a clause is reasonable?
The party relying on it
Act that provides a trader cannot exclude or limit the statutory implied terms so as to title, compliance with description, quality, reasonable care and skill and reasonable time
Consumer Rights Act 2015
Act that provides contract terms must be transparent (plain language and legible) and does not cause a significant imbalance in the parties’ rights and obligations to the detriment of the consumer
Consumer Rights Act 2015
What are the below examples of in the CRA 2015?
- Excluding or limiting trader’s liability in the event of personal injury or death resulting from an act of omission
- Requiring the consumer pay a disproportionately high sum for deciding not to conclude or perform contract
- Enabling the trader to terminate a contract of indeterminate duration without reasonable notice
Potentially unfair terms
Which terms are not assessed for fairness under the CRA?
Terms that specify the main subject matter or relate to price
Provided the term is transparent & prominent, and not in the list of potentially unfair terms
Factors that make a contract void
- Mistake
- Illegality (including contracts contrary to morality & illegal restraint of trade)
The three factors that make a contract voidable
- Duress
- Undue influence
- Misrepresentation
A contract without any legal effect from the beginning
Void contract
A contract that operates as a valid contract until a party elects to void/rescind it
Voidable contract
What is the effect of recisssion on a contract?
Puts the parties back in the position they would have been in had the contract not been entered into
When is a contract void for mistake
It makes what has been agreed fundamentally different to what was intended (parties not in agreement)
Term for parties being in agreement but both have made the same mistake
Common mistake
(void)
Term for parties being mistaken about different things and at cross purposes
Mutual mistake
(ambiguous contract = no agreement = void)
Term for one party making a mistake the other party is aware of
Unilateral mistake
(void)
What happens to a contract entered into with a mistake as to identity
- If the mistaken party would have contracted irrespective of the other’s identity, innocent party may have a remedy for misrepresentation
- If other party’s identity was fundemental for contract to be entered into - void for mistake
Defence that protects a signing party in the mistaken belief that it represents something different from what it actually represents
Non est factum
Requirements for non est factum to apply
- Radical difference between what was signed and what was believed to have been signed
- Mistaken signatory must not have been careless in signing
What is the court’s solution to parties orally agreeing on contract terms but incorrectly recording it
Rectification
Allows written contract to reflect the oral agreement
A voidable contract whereby some form of pressure has been exerted over a party so that one party has not entered into the contract freely
ii
- Duress
- Undue influence
Fill the gaps:
______ is governed by common law
______ is an equitable doctrine
Similar vitiating factors that render a contract voidable
- Duress
- Undue influence
Three forms of duress
- Duress of the person
- Duress of goods
- Economic duress
Status of the contract if undue influence has been exercised
Voidable
Two forms of undue influence
- Actual (overt acts)
- Presumed (as a result of relationship)
What is the difference between duress and undue influence?
- Undue influence is conduct that does not go far enough to be considered duress
- Unlike duress, undue influence need not be in bad faith or unlawful
Term for actual or presumed (more common) undue influence carried out by someone not party to contract
Third-party undue influence
Five types of illegality that void a contract
- Contracts illegal by statute
- Contracts illegal at common law (agreement to commit a civil wrong)
- Contracts contrary to morality or the institution of marriage
- Contracts damaging to the government
- Contracts that interfere with justice
Doctrine that makes contracts void if they unreasonably restrict a party with clauses of obligation (e.g. restrictive covenants, non-compete clause)
Restraint of trade doctrine
What must a party wishing to rely on a restraint of trade clause demonstrate?
It is reasonably necessary for the protection of its legitimate interests
A false statement of fact or law made by one party to induce another into entering a contract
Misrepresentation
Induce - if other party didn’t believe/care = not actionable
Silence will usually not amount to an actionable misrepresentation except in which type of contract?
Uberrimae Fidei (Utmost Good Faith) contracts
(e.g. insurance contracts)
Term for a misleading statement that is technically true
Partial nondisclosure
Term for a false statement made by someone who genuinely believes it to be true and the statement then induces someone to enter into a contract
Innocent misrepresentation
Types of misrepresentation
- Fraudulent
- Negligent
- Innocent
Two remedies for misrepresentation
- Rescission (notification required)
- Damages
What happens if the innocent party delays in rescinding a contract involving misrepresentation?
Contract affirmed
May lose the right to rescind
Under the Misreprentation Act 1967 the court has discretion to award damages instead of ordering rescission in which types of misrepresentation?
Negligent or innocent misrepresentation (not fraudulent misrepresentation)
Damages are generally awarded under which types of misrepresentation?
Negligent and fraudulent
Damages generally not available for innocent misrepresentation unless court grants damages in lieu of recission
Rescission can be a remedy to which types of misrepresentation?
All.
Fraudulent, Negligent and Innocent.
Terms for bringing a contract to an end
Discharge
Rescission
What is the difference between discharge and rescission?
Rights and obligations which have accrued before termination remain in place for discharge but not for rescission
What are the five possible reasons for discharging a contract?
Funky Elephants Eat Peanut Butter
- Frustration - Contract can no longer be performed
- End/vary - Parties agree to end or vary the contract
- Expiry - Contract expires or break clause triggered
- Performance - Parties’ obligations have been performed
- Breach - A party breached the contract
What is the difference between discharge and rescission of a contract?
Rights and obligations are maintained after discharge.
Rescission destroys all rights and treats the contract as never having existed.
What is the consideration in a contract discharged by agreement while all parties still have unperformed obligations?
Each party benefits from being excused of their obligations under the original contract
What does agreement to end a contract and variation of a contract result in?
A new contract
How to end a contract by agreement or variation when one party has performed their obligations in full?
By deed. If there is no deed, some new consideration must be given
Equitable doctrine that allows party to promise not to enforce another’s obligations under the contract thus providing a way around the requirement of consideration
Waiver
What is the limitation of the waiver doctrine?
Party waiving their rights can reinstate the original terms by giving reasonable notice
The rule that provides only full (exact and precise) performance will discharge a contract
Entire obligations rule
Which type of contract does the ‘substantial performance rule’ apply to?
Lump sum contract
In a case of partial performance accepted by the other party, what can be considered consideration?
Agreement on a revised price
Two types of breach
- Actual breach (non or defective performance)
- Anticipatory breach (indication that obligations won’t be fulfilled)
What right does a non-breaching party have when an anticipatory breach that goes to a condition of the contract arises, which they lose if they wait?
Right to sue for damages
What can the innocent party do in a case of breach of a warranty?
Claim for damages only
What can the innocent party do if the party in breach repudiates a contract or breaches a condition?
- Terminate the contract (must communicate this to breaching party) or carry on with the contract
- Claim damages
What has happened?
Contract rights and obligations remain in place, innocent party may claim damages
Contract is terminated for breach
If buyer terminates a contract because goods delivered do not conform to contract what must he do to make a claim and what claim can be made?
- Must return the goods
- Can claim damages for failure to supply goods in conformity with the contract
How is a rescinded contract treated?
As though it were never effective
Retaining defective goods delivered under a sale of goods contract after discovering a defect is considered…
Affirming the contract
What does affirmation prevent the innocent party from doing?
Terminating the contract
What are the innocent’s party’s options if a contract is breached?
Accept the breach, terminate and claim damages
What happens automatically to a frustrated contract?
It is discharged
Three factors that can frustrate a contract
- Impossible
- Illegal
- Radically different
Three factors that do not frustrate a contract
- More difficult or expensive to perform
- Self-induced frustration
- Events that could be foreseen
Act that provides if a contract is frustrated and parties discharged from performance, all sums paid before discharge are recoverable, all sums payable before discharge cease to be payable
Law Reform (Frustrated Contracts) Act 1943
Clause that allows for contract termination if event outside of parties’ control prevents performance (war, act of God)
Force majeure clause
How are expectation damages/damages for loss of bargain determined?
- How much to cure defects
- Difference in value between what was and what should have been provided
What do contract breach remedies attempt to do?
Put the innocent party in the position they would have been in had the contract been performed or not entered into
If expectation interest damages are too speculative to be measured, how can the innocent party recover damages?
Based on a reliance measure
How do reliance measures compensate the innocent party?
Compensate for any expenses incurred in reliance on the contract up to the time of breach
When are breach of contract damages assessed from?
As at the date the contract is breached
When would losses flowing from a breach of contract not be recoverable?
When they are too remote
(Remoteness is considered as at the time the contract was entered into)
What is the difference in remoteness between contract and tort law?
In contract, the test is whether the loss was a serious possibility and must flow naturally from the breach (higher bar)
In tort, the damage needs to be reasonably foreseeable (lower bar)
In which circumstance can contributory negligence be used a possible partial defence in Contract?
As a last resort
What are the three measures of damages in a breach of contract?
- Diminuation of value
- Cost of remedy
- Value of loss of amenity (rare)
What must the innocent party demonstrate they have done when seeking damages from a contract breach?
Taken reasonable steps to mitigate loss
What is the difference between liquidated and unliquidated damages?
Liquidated damages are quantified/set amount.
Unliquidated damages must be quantified by the court
What might a disproportinate liquidated damages clause be challenged as?
Penalty clause
What defines a penalty clause to the court?
It imposes a detriment out of proportion to the obligation breached
What distinguishes indemnity from guarantee?
In a guarantee, the guarantor’s promise is a ‘secondary obligation’.
In an indemnity, the guarantee is the ‘primary obligation’.
Indemnity need not be in writing.
What are the three characteristics of a debt claim?
- No need to consider remoteness or causation
- No duty to mitigate
- Amount is liquidated (set amount)
What is the common remedy in a breach of contract case involving land or something unique?
Specific performance
What does an injunction remedy order the breaching party to do?
Not to breach the contract
For rescission to be the remedy applied in a breach of contract, when must the grounds for rescission have taken place?
Before or at the time the contract was entered into
Defences to claims for equitable remedy
- Unconscionable behaviour by the claimant
- Waiver
- Unreasonable delay in enforcing claim (delay defeats equity)
Under the Consumer Rights Act 2015, how long does a consumer have to reject defective goods in return for a full refund?
30 days after they were supplied
Under the Consumer Rights Act 2015, what can the consumer do if they have not rejected defective goods after 30 days?
Require the trader to repair or replace goods at trader’s expense
What are restitutionary remedies concerned with?
Repayment of wrongful gains, preventing unjust enrichment
What do the following mean
Quantum meruit
Quantum valebat
Reasonable renumeration for work undertaken
Reasonable payment for the value of the goods
What are the two main elements of the Consumer Rights Act 2015 that make a term unfair?
- Contrary to the requirement of good faith
- Causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer
Term for a false statement of fact, made pre-contractually, which is intended to induce the representee to enter into a contract, and which has that effect
Actionable misrepresentation
Term for a misrepresentation made carelessly or without reasonable grounds for believing it to be true
Negligent misrepresentation
Five requirements for a contract to be valid
- Offer
- Acceptance
- Consideration
- Intention to be legally bound
- Parties have capacity
Three requirements for a deed to be valid
- In writing
- Intended to be as a deed
- Executed as a deed (signed, witnessed, delivered)
What is required of a communication for it to be an offer?
It must express intent to be bound in contract if the other party accepts
To be enforceable by court, the terms of an offer must be sufficiently…
Definite and certain
Why is returning a lost dog without finder’s knowledge of a reward offer not an acceptance of the offer?
The offeree must have knowledge of the offer
Why is there never an entitlement to an injunction?
It is a discretionary remedy
What type of contract clause restricts activities after a contract has come to an end?
Restraint of trade clause
These clauses include obligations called Restrictive Covenants
When is the defence of laches available as an equitable remedy?
If the innocent party has delayed unreasonably in bringing the action and the delay is prejudicial to the other party
What term does the Sale of Goods Act 1979 imply as regards condition of goods?
The goods supplied under the contract must be reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied
What are the 4 bars to rescission whereby the innocent party may lose their right to rescission for misrepresentation?
- Affirmation (carry on anyway)
- Lapse of time (‘delay defeats equity’)
- Impossibility of restitution (subject matter changed)
- Third party right (if bona fide purchaser acquires good title)
What 2 remedies are available for breach of a condition?
Terminate contract and sue for damages
What remedy is available for breach of a warranty?
Sue for damages
No option to terminate contract
When is the time for performance under a contract a condition rather than a warranty?
When time is of the essence
When is there a general presumption that time is of the essence in a contract?
Commercial contracts for delivery if a time for delivery has been agreed
In which type of contracts is time presumed to be of the essence?
Commercial contracts
In other contracts, time is of the essence if the contract so provides
How binding is an implied term on parties in a contract compared to expressly agreed terms?
Equally as binding as expressly agreed terms
What are the 3 main points for the Supply of Goods and Services Act 1982?
- Implies innominate term to service contracts that the supplier will carry out the service in a reasonable time and with reasonable care and skill
- Similar supply of goods terms are implied as under Sale of Goods Act 1979
- A contract may exclude these terms only if reasonable
The court will usually not enforce a contract if the terms are…
So incomplete or vague the parties’ intentions are unclear
What is this an example of?
X making a statement that the contract does not include any exclusions when X knows it does
(Oral) misrepresentation
What is required for an exclusion clause incorporated into the contract by notice to be valid?
Reasonable steps taken to bring exclusion clause to the other’s attention before or whilst contract is being made
Under UCTA, what 3 clauses are void unless reasonable?
- Clause that attempts to exclude liability for any loss other than death by negligence
- Term that excludes or restricts liability for breach of contract, reserves right to substantially change performance from expectation, or negates party’s duty to perform
- Clause that attempts to exclude liability for breach of obligations as to compliance with description, quality, or fitness for purpose under SGA 79 or SGSA 82
What type of duress
- qualifies voidable contract
- does not qualify voidable contract
- Illegitimate pressure (such as physical threat or exploiting a stronger economic position in an illegitimate manner)
- Duress to goods (threat to unlawfully retain goods)
What arises when an outside party blackmails the innocent party into making the contract or uses a position of trust and confidence to put excess pressure on the party?
Undue influence
When is a statement of intention an actionable misrepresentation?
e.g. I intend to do x in futute
If it can be proved the speaker did not genuinely have the intention when they said they did
Changing their mind later doesn’t create an actionable misrepresentation
In which 3 situations can silence be an actionable misstatement?
- In contracts uberrimae fidei
- When partial disclosure would be misleading
- An earlier representation has become untrue
Why is it harder to prove fraudulent than negligent misrepresentation under the Misrepsentation Act 1967?
Challenger must prove fraud but speaker must disprove negligence
When does court put parties in position they would have been in if contract was
- performed
- never entered into
- When granting specific performance or damages as remedies for breach of contract
- When granting rescission or reliance damages as remedies for breach of contract
What is required to support the discharge of a contract by the agreement of the parties?
Consideration
What does the contract breach remedy of damages attempt to do?
Put the innocent party in the position they would have been in had the contract been performed
