Contracts Flashcards
Analyzing a Contracts Questions
- Is there an enforceable contract?
- Any defenses to enforceability?
- Did defendant breach?
- Defenses that would excuse the breach?
- Damages/ Remedies
Formation of Valid Contractg
Mutual Assent + Consideration + no defenses to formation
Offer and Mutual Assent
Offer: manifestation of a present intent to enter a contract + definite and certain terms + communicated to an identified offeree.
Mutual Assent: offer + acceptance
Mailbox Rule
Acceptance effective when sent or communicated.
Rejected when received.
Consideration
Required bargained for exchange of legal detriment between parties.
Substitutes for Consideration
- Material Benefit: a promise for previously received benefit is binding unless given as a gift or value is disproportional.
- Promissory Estoppel: party detrimentally relied on other’s promise expecting result to avoid injustice.
Past/Moral consideration is not consideration.
illusory promises (one party has no obligation to perform) not consideration
Pre- Existing Duty Rule
past performance or pre-existing duty is not consideration unless an addition or change in performance
Defense to Enforceability.
- Unconscionability
- Lack of Capacity
- Duress
- Mistake
- Misrepresentation
- Lack of Consideration
- Statute of Frauds
Statute of Frauds writing requirements
writing+ signed by part to be charged + id subject + essential terms + k intended
UCC: quantity terms, signature, unless confirmation memo
SOF: Required Subject to Writing
!. Real Estate Contracts over 1 year
- Services Incapable of performance within 1 year.
- Sale of Goods of $500 or more
- Suretyship Contracts
Exceptions to SOF Writings
- Part Performance: (payment + improvements or possession
- Services: Full Performance
- Suretyship: “leading object” or “main purpose”
- Sale of Goods:
- Confirmation Memo - 2 merchantss;10 days and no objection.
- Specialty Manufactured Goods
- Delivery and Acceptance of Goods
- Delivery and Acceptance of Payment
UCC: Acceptance of Goods
- buyer tells seller good are conforming or will retain non-conforming goods
- fails to reject the goods after inspection
- or any act inconsistent with seller’s ownership of the goods.
buyer is obligated to pay for goods once acceoted unless revocation of acceptance allowed.
Anticipatory Repudiation
when a party notifies that they are unable and unwilling to perform under K.
- Non breaching party
- repudiate and sue for dmg before time of performance due
- treat contrct as discharged
- sue at time of performance or
- urge other party to perform
- retracting repudiation to restore K unless:
- cancelled
- other party materially changed position
- considered repudiation final
Warranty of Title
Warrants title shall be good/ rightful and free from any security interest, liens or encumbrances
Remedies: Expectation Damages
puts P in position as if K not breached.
dmgs must be actual cause by D + proximate cause by D + certain and unavoidable.
Remedies: Consequential Damages
Ariese indirectly from breach. (lost profits)
dmgs must be forseeable at time of K + arise from P’s special circumstance that D knew + certain.
