Contracts Flashcards
Accord and satisfaction - Creditor/debtor
Only valid when there is a dispute re: validity/amount or payment is of different type than that under og K.
UCC - Written modification clauses
“Parties may prohibit oral modification”
M to non-M –> signed separately
M to M –> binding
Accord vs substitute Ks
Turns on formality
Promise to not bring a claim as consideration
honest belief as to the validity
and there must be a reasonable basis
Promissory Estoppel
i) reasonably expect it to induce action
ii) does induce such action
iii) Injustice
Charitable subscriptions
Enforced under PE but must be written
Voidable K based on unilateral Mistake
1) mistaken party did not bear the risk and
2)
i) unconscionable
ii) The non-mistaken party:
a) Failed to disclose the mistake despite knowing or having a reason to know that the other party was mistaken or having a duty to disclose the fact about which the other party was mistaken; or
b) Caused the mistake
Cure of misrepresentation
- before the deceived party has avoided the contract,
- cured
- then the contract will no longer be voidable
Effect of duress
Physical duress –> void
Other duress –> voidable
PER partial integration
“permitted to introduce supplementary extrinsic evidence (oral or written) of other terms as long as the evidence is consistent with the writing
PER inapplicable situations
- Defenses
- Excuse
- Separate deal
- Condition precedent
- Ambiguity
Buyer right to inspect goods
“inspection may occur at any reasonable time and place and in any reasonable manner”
UCC nonconforming tender in installment K
“buyer may cancel the contract only if the nonconformity substantially impairs the value of the entire contract to the buyer”
Retraction of repudiation
(i) acts in reliance on the repudiation,
(ii) signifies acceptance of the repudiation, or
(iii) commences an action for breach of contract.
Merchant
person who deals in the kind of goods involved in the transaction or
holds himself out as one with special knowledge or skill concerning the practices or goods involved in the transaction
UCC firm offer
- words of firmness
- signed by M
- writing
- 90 day limit
UCC - when new terms control
i) They materially alter the original contract;
ii) The offer expressly limits acceptance to the terms of the offer
iii) “The offeror has already objected to the additional terms or objects within a reasonable time after notice of them was received.”
UCC- SOF exceptions
- Unique goods
- Court admission
- Performance
UCC failure of a source of supply
“Courts will excuse performance when the parties have specifically identified the source in the contract.”
Excerpt From: Themis Bar Review, LLC. “Advanced Sales.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Adequacy of assurance
Depends on facts of the individual case.
Between merchants, the adequacy of any assurance offered is to be determined according to commercial standards.
After reasonable time not to exceed 30 days =’repudiation
Excerpt From: Themis Bar Review, LLC. “Advanced Sales.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
PER
“the terms in the writing cannot be contradicted by extrinsic evidence of a prior agreement or a contemporaneous oral agreement”
Excerpt From: Themis Bar Review, LLC. “Advanced Sales.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Tender of delivery
“seller must put and hold conforming goods at the buyer’s disposition for a sufficient time for the buyer to take delivery”
Excerpt From: Themis Bar Review, LLC. “Advanced Sales.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Shipment Ks - Seller duty
put the goods into the hands of a carrier,
make a reasonable contract for shipment,
promptly tender the shipping documents to the buyer, and promptly notify the buyer of the shipment.
Proper rejection of goods
Notify seller w/n reasonable time
Notify seller of particular defect
Buyer duty post-rejection
Security interest? “buyer may hold the goods and resell them in good faith in a commercially reasonable manner, but he must account to the seller for any excess over the amount of the buyer’s security interest”
No security interest? “obligated to hold the rejected goods with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them.
Seller’s right to cure
- Right to correct w/n K time
- If seller had reasonable belief that non-conforming goods would be tendered … Seller gets reasonable further time
Reasonable grounds = “prior course of dealing between the parties or trade usage”
Revocation of acceptance of goods
1 substantial impairment and
- seller failed to correct after promising to
- nonconformity undiscovered due to difficulty or seller assurances to contrary
Excluding warranties
Merchantability - oral ok
Fitness - conspicuous writing only
Liquidated damages
“only at an amount that is reasonable in light of the anticipated or actual harm caused by the breach”
Excerpt From: Themis Bar Review, LLC. “Advanced Sales.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
SOL sales Ks
4 years after coa accrues
- may be reduced to not less than 1 year
What is anticipatory repudiation
“occurs when a party unequivocally states her unwillingness to perform under the contract or fails to provide, upon proper demand, adequate assurances of performance”
Excerpt From: Themis Bar Review, LLC. “Advanced Sales.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Effect of repudiation
If “repudiation substantially impairs the value of the contract”
- await performance for commercially reasonable time
- immediately seek available remedies
NY modification K
modified contracts do not require new or additional consideration to be enforceable, provided that the modification is in
- writing
- signed by the party to be charged
Modification of services K
because modification of a services contract must be supported by consideration. Or some circumstances that were not anticipated when the contract was made must have arisen, and modification is fair and equitable in light of those circumstances
When does an insurance interest attach
upon the identification of the goods. Where the contract is for future goods (i.e., goods that are not both existing and identified), the buyer does not acquire an insurable interest until the seller designates goods as those to which the contract refers, unless the parties have explicitly agreed otherwise. Since the dairy did not select a tank trailer from the retailer’s inventory or otherwise select a specific
Intended bennies (awareness/id)
Need not be specifically assigned nor aware until attempt to recover
Unconscionable timeframe
The contract or part of the contract at issue must have been offensive at the time it was made.
To bring an action as an intended beneficiary
(i) a contract between A and B;
(ii) the clear or manifest intent of A and B that the contract primarily and directly benefit the third party;
(iii) a breach of the contract by either A or B; and
(iv) damages to the third party resulting from the breach.
