Contracts

Question 1

Anticipatory Repudiation Requirements

Answer 1

1. Bilateral K with unperformed duties on both sides; AND

2. Words/conduct by promisor that he cannot/will not perform when time comes (doubts/fears do not suffice)

Question 2

Non-Repudiating Party 4 Options Upon Showing of Anticipatory Repudiation

Answer 2

1. Treat it as total repudiation and sue immediately;
2. Suspend his own performance and wait to sue until performance date;
3. Treat repudiation as an offer to rescind and treat the K as discharged; or
4. Ignore repudiation and urge promisor to perform

Question 3

When are good identified to the contract?

Answer 3

When seller ships, marks, or otherwise designates them as good to which the contract refers.

Question 4

Can an incidental beneficiary sue to enforce the contract?

Answer 4

No

Question 5

When is “contract price of machine” available against buyer?

Answer 5

1. where the buyer has accepted the goods;
2. where the goods are lost or damaged within a reasonable time after ROL has passed to buyer; or
3. where the buyer has returned or rejected the goods and the seller is unable after reasonable efforts to resell the goods

Question 6

When can you claim difference between contract price and market price of item?

Answer 6

When buyer has wrongfully rejected the goods

Question 7

When is the difference available between contract price and price obtained from a proper resale of the machine?

Answer 7

When buyer has wrongfully rejected the goods

Question 8

Easements & Repairs

Answer 8

Easement holder is required to make repairs to easement that become necessary over time. Easement holder has right to enter land owned by the party that the easement crosses to make repairs to easement. The servient estate has no obligation to maintain or make repairs to the easement.

Question 9

Fixture Definition

Answer 9

Chattel that is attached to land in such a way that it has ceased to be a personal property and has become party of the reality. In landlord/tenant situation, the chattel is owned and brought to the land by someone other than the landowner

Question 10

Accession

Answer 10

Term to describe the intent of the annexor to make the chattel a permanent part of the real estate.

Question 11

Trade Fixture Exception

Answer 11

Allows tenants who are tradesmen to remove items used in their trade that would be fixtures, unless removal would cause substantial damage.

Question 12

UCC - SOF (essential terms)

Answer 12

If a writing does not contain essential terms such as quantity, then it does not satisfy the SOF and cannot be enforced.

Question 13

Are “as is” contracts enforceable?

Answer 13

Yes as long there was no fraudulent concealment, no positive misrepresentation, and no applicable statute

Question 14

Assignment

Answer 14

You can assign as long as there is no provision in the contract that prevents it and the other party will not suffer any harm and there isn’t a substantial interest in having the original obligor perform.

Question 15

Time of Service

Answer 15

Service must be made within 90 days after the complaint is filed with the court. Failure to do so is only excused by showing good cause for failing to do so

Question 16

Earnest money deposit and liquidated damages

Answer 16

When contract for sale of land calls for a buyer to deposit earnest money, the seller may retain that earnest money as liquidated damages in the case of breach. Liquidated damages clause must be reasonable and fair amount for compensation to the non-breaching party. If deposit is so large that it is not a reasonable estimate of seller’s actual damages, courts refuse to enforce it on the grounds of penalty

Question 17

Firm Offer & Revocation

Answer 17

Firm offer irrevocable even if no recitation of payment of consideration if the offer is:

1. made by merchant;
2. signed writing; and
3. gives explicit assurance that offer will be held open

Firm offer irrevocable for 3 months even if contracted to remain open for longer. If 3 months passes and no consideration given to support, then offer can be revoked at any time before acceptance

Question 18

When is restitution granted

Answer 18

used as a remedy when no enforceable contract or where expectation damages are too hard to prove or the deal would have resulted in a loss for the non-breaching party if the breaching party had performed.

calculated by what has been actually gained by the reaching party, while expectation damages take into account what actually or possibly was lost by the non-breaching party