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bar prep questions + rule of law > Contracts > Flashcards

Contracts Flashcards

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1
Q

if the facts involve a transaction in goods– do you apply common law or the UCC?

A

UCC

only applies to a transaction in goods

without a transaction in goods the common law of contracts governs

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2
Q

what are two examples of topics that are covered by common law?

A

real estate and services

ESSAY:
because this is a services contract, the common law of contracts governs instead of the UCC

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3
Q

what is a transaction in goods?

A

a sale of tangible personal property

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4
Q

what is a merchant

A

one who regularly deals in goods of the kind sold or who otherwise by their profession hold themselves out as having special knowledge or skills as to the practices or goods involved

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5
Q

formation of a contract consists of…

A

offer
mutual assent
consideration

REMEMBER: ALWAYS STATE absent of any defense to enforcement

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6
Q

bilateral contract

A

formed by an exchange of promises

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7
Q

unilateral contract

A

formed by a promise in exchange for performance

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8
Q

what is mutual assent?

A

whether there was an offer and acceptance of that offer

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9
Q

what is an offer?

A

when there is intent to enter a contract through a promise or undertaking

terms must be:
definite and certain
communicated to the offeree
giving the offeree actual knowledge

creates a power of acceptance in the person to whom the offer was made

can not be accepted if it wad terminated

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10
Q

termination of the offer by the offeror…

A

revocation

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11
Q

termination of the offer by the offeree..

A

rejection

counteroffer

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12
Q

what is a counter offer?

A

terminates the offer and creates a new offer

REMEMBER: mere bargaining is not a counter offer

conditional acceptance terminates the offer

LOOK FOR: “provided” or “so long as”

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13
Q

mirror image rule

A

if the acceptance does not contain the exact same terms as the offer, then the new terms are treated like a revocation of the original offer and a counteroffer under common law

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14
Q

under the UCC is a change of terms a counter offer?

A

NO and can constitute acceptance unless stated otherwise in one of the forms.

EX: when a buyer places an order and the seller’s acceptance form contains different terms or the terms are not addresses in the order at all.

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15
Q

battle of the forms

A

unless acceptance is expressly made conditional to the additional terms the nonconforming acceptance creates a valid and binding contract

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16
Q

battle of the forms:

if the buyer is a consumer….

A

then the additional terms are treated as proposals.

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17
Q

battle of the forms

if the buyer is a merchant….

A

then the additional terms become part of the contract unless the offer expressly limits acceptance to its terms

the offeror objects within a reasonable time
or
the additional terms would materially alter the contract.

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18
Q

battle of the form…

knockout rule

A

if the terms are different, then the knockout rule applies and omits the offeror’s original provision and the offeree’s differing provision from the resulting contract

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19
Q

can the offeror control the method of acceptance?

A

yes!

both in common law and UCC

by stating the conditions

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20
Q

if the offer is silent as to the method of acceptance then…..

A

the offeree can indicate acceptance by starting performance

in a unilateral contract– the offeree must complete performance

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21
Q

when is acceptance by letter valid?

A

upon dispatch

AKA when placed in the mail

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22
Q

what happens when the offeree changes their mind and after mailing the acceptance letter mails another letter?

What letter controls?

A

whichever letter is received first is what controls

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23
Q

what is consideration

A

a bargained for exchange

REMEMBER: the promise must induce the detriment and the detriment must induce the promise

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24
Q

does an act of restraint count as consideration?

A

Yes, if it gives the offeror a benefit

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25
Q

does a pre-existing contractual or statutory duty count as consideration under common law?

A

NOT for a new promise

New consideration is always required

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26
Q

does a pre-existing contractual or statutory duty count as consideration under the UCC?

or

is new consideration required?

A

New consideration is not required.

good faith is the test for changes to an existing sale of goods contract

27
Q

what is promissory estoppel?

AKA detrimental reliance

A

substitute for consideration

requires:
promise
reliance that is reasonable
enforcement

28
Q

what are the defenses to the enforcement of a contract?

A

lack of capacity

SOF

illegality

misrepresentation

nondisclosure

duress

unconscionability

mistake of fact

29
Q

defenses:

lack of capacity

A

individuals who lack capacity to contract

include:
intoxicated persons if the other person has reason to know

under the age of 18

mental incompetents that lack the ability to understand

30
Q

defenses:

SOF

what kind of contracts do SOF apply to?

A

applies to:

contracts that are in writing that are one of the following:

SURETYSHIP (promise to pay someone else’s debt)

promise in consideration of MARRIAGE

service contract not capable of being performed within ONE YEAR

REAL ESTATE

SALE OF GOODS ($500 or more)

31
Q

what is the UCC’s writing requirement?

A

that the writing states that it is a contract for the sale of goods and contains the quantity of goods

32
Q

mistake of fact

A

when both parties to a contract are mistaken about the material fact, then the contract is voidable by the adversely affected party

33
Q

what happens when only one party is mistaken about the facts of the contract?

A

the mistake does no prevent the enforcement of the contract

BUT if the other party knew or had reason to know then the contract is voidable

34
Q

what are the different types of warranties?

A

express
implied warranty of merchantability
implied warranty of fitness for a particular purpose

35
Q

express warranties

A

created by the seller

become apart of the agreement if they are the basis of the bargain

36
Q

implied warranty of merchantability

A

included with every sale of goods

goods must be fit for their ordinary purposes

37
Q

implied warranty of fitness

A

direct representation by the seller or the seller’s representative that the product fits what the buyer wants

38
Q

how can a seller alter the implied warranties?

A

language like “as is” or “with all faults”

39
Q

parol evidence rule

2 questions to ask

A

what is the purpose that the evidence is being used for

does the evidence relate to a term or contract that is integrated?

40
Q

when is parol evidence allowed?

A

when it is being used tot explain or interpret the terms of a written contract

41
Q

parol evidence rule

when does the UCC allow for parol evidence to be used?

A

usage of trade

course of dealing

course of performance

to supplement terms of the written contract

42
Q

when is a duty to perform discharged?

A

performance

tender of performance

completed condition subsequent

if performance is:

  • illegal
  • impossible
  • impractical
  • rescinded
43
Q

breach

A

occurs when there is a failure to perform when under a duty to perform

44
Q

minor breach

A

does no relieve the non-breaching party from performance but that party is entitled to damages

45
Q

material breach

A

excuses the non-breaching party from performance and he is entitled to all available remedies

46
Q

under the UCC what happens if the goods or the delivery fail to conform in any way with the contract?

A

the buyer may reject them, accept them or just accept certain ones

47
Q

under the UCC what happens if the goods or the delivery fail to conform in any way with the contract…

when can the buyer NOT reject the goods?

A

buyers cannot reject them after already accepting by inspecting and indicating the goods do confirm or by failing to inspect

48
Q

under the UCC what happens if the goods or the delivery fail to conform in any way with the contract…

when can the buyer revoke acceptance?

A

if the goods are so defective that their value is substantially impaired.

49
Q

under common law:

what are the buyer’s remedies?

A

monetary damages:
expectation damages

reliance damages

restitution

liquidated damages

50
Q

under the UCC

what are the buyer’s remedies?

AND what do they rely on?

A

FIRST: depends on if the goods have been delivered

REMEDIES: damages or specific performance

REMEMBER: key factor is if the buyer has recovered is loss by purchasing replacement goods

51
Q

what are equitable remedies?

A

specific performance

restitution

unjust enrichment

negative injunctive relief

52
Q

what is specific performance and when is it available?

A

only available when a monetary reward would not be adequate

available:
unique objects
real property

NOT available:
for personal services

53
Q

what type of 3rd parties are involved in contract disputes?

A

beneficiary

  • intended
  • incidental

assignment

delegation

54
Q

incidental beneficiary

A

those that benefit from a promisor’s performance but are not intended to benefit.

has no standing to enforce the contract

55
Q

intended beneficiaries

A

when the promisor’s performance was intended to benefit that third party

has standing against the promisor

BUT can not sue the promisee there must be an independent obligation for the promisee to be liable

56
Q

assignment

A

transfer of a right to receive a performance under a contract

57
Q

what rights are unassignable?

A

substantially change the contract’s risks/duties

are for future rights to arise under future contracts

those that are illegal

58
Q

delegation

A

when a third party agrees to satisfy a performance obligation owed by one of the parties to the contract

59
Q

novation

A

when the obligee agrees to release the delegator in return for the liability of the delagatee

AKA substitute the person who entered the contract with another

60
Q

what rights are not delegable?

A

personal performance contracts when the recipient relies on the qualities of someone who is to render performance

THINK: world-famous artist

61
Q

federal statute: certain airports can regulate how much limos charge for rides to that airport

redville is one of the airports listed. redville is next to greenville and share the airport in redville.

redville city council sets the limo price

a limo company in greenville charges cheaper rates than the rates city council allows

must the limo company comply with the council rules?

A

yes because congress has authorized this form of regulation by redville and removed any constitutional impediments to it that may have otherwise existed

supremacy clause- federal law governs

commerce clause- states cannot pass regulations of local aspects of interstate commerce that discriminate against out-of-state parties to benefit local interests

62
Q

Defendant was on trial for murdering his father.

Defendant’s defense was that it was an accident

prosecutor calls cop to testify that on several different occasions they were called to the defendant’s home for beating his father.

the evidence is….

A

admissible to show that the defendant killed his father intentionally

evidence of prior fights and beatings are admissible for the purpose of establishing the defendant’s intent or absence of mistake

REMEMBER: state can not initiate evidence of bad character of the defendant to show they are more likely to have committed the crime

63
Q

state law made it a criminal offense for any state employee to knowingly provide educational services to an undocumented person.

principal being charged under state law.

what constitutional proviion would be the most helpful for the principal?

A

the ex post factor clause of article I, section 10

ex post factor laws punish conduct that occured before the law becomes effective

bar prep questions + rule of law (15 decks)

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