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Final MBE Review > Contracts > Flashcards

Contracts Flashcards

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1
Q

Express contract
Implied contract
Quasi-Contract

A

Express contract: Communicated via language
Implied contract: Parties conduct will indicate intent to be bound (e.g., watching someone paint house knowing they thought there was an agreement

Quasi-Contract: One party is unjustly enriched, and so restitution is the remedy

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2
Q

Offer definition

A

objective manifestation of an intent to contract

assessment includes: communicatino, certain and definite terms, promise, undertaking, commitment

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3
Q

Indirect revocation elements

A

(1) Offeree receives
(2) Correct info
(3) From a reliable source
(4) Of offeror’s act indicating to a reasaonble person that there was a revocation

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4
Q

Option contract requirements

A

Consideration!

Note, no 3 mo limitation here, like in merchant firm offer

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5
Q

ireevocable offer based on - detrimental reliance

A

Must be forseeable and destrimental on the offer

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6
Q

Acceptance

A

UCC: promise to ship or shipment
CL: communication of any kind (starting performance, any reasoanble manner)

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7
Q

Unilateral offer acceptance

A

You have to know of unilateral offer to accept it - can’t return teh dog, and then demand payment

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8
Q

Unilateral offer acceptance

A

full performance only!

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9
Q

UCC Acceptance via non-conforming goods

A

Options

1) Give seller time to CURE up until the contract time left (required
(2) Reject
(3) accept and sue for damages

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10
Q

Acceptance is effective…

A

upon dispatch

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11
Q

Consideration

A

bargained for exchange of something of legal value

something you’ve already done cannot be consideration

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12
Q

Promissory estoppel

A

No consideration, just a promise. Enforcable to teh extent necessary to prevent injustice if the promisor would reasonably be expected to induce action or forbearance of a define and substantial character adn it is induced (e.g., grandpa promises $1000 as a gift, and then granddaughter relies on it)

Only applies if there is no conisderation

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13
Q

Modification common law

A

new consideration ( can be paying earlier, even if smaller sum than originally owed!) unless unanticipated circumstances when contract was made & modification si fair and equitable in light of them

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14
Q

Defenses

Lack of capacity

A

Minors!

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15
Q

Defenses

Ambiguous

A

Look for one party being aware of ambiguity - terms will be construed for the ignorant party

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16
Q

Mutual mistake as to fact

A

Defense if (1) mistake concerns basic assumption on which contract is made; (2) mistke has a material effect and (3) party seeking avoidance did not assume risk of mistake

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17
Q

Unilateral mistake

A
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18
Q

if within SoF

A

Need writing signed by party sought to be bound

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19
Q

Sof - Goods

A

Must include quantifty term

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20
Q

SoF goods exceptions

A

(1) Specially manufacturerd, requires (A) unsuitablef or resal eand (2) manufacturer made substantial beginning on manufacture or commitments for procurement

(2) Merchant’s confirmatory memo:
(a) between two merchants
(b) in writing
(a) other party has reason to know of contract and
(b) doesn’t object in 10 days

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21
Q

Merchant confirmatory memo requirements

A

SoF, but

(1) Two merchants
(2) one sends writing that has essential terms(e.g., q)
(3) other party has reason to know of contract
(4) doesn’t object within 10 days

Both merchants will be bound by it

22
Q

Parol Evidence

Partial vs. Final

Exceptions

A

Partial: oral evidence of consistent additional terms is allowed

Parol evidence allowed even if final where:

(1) it’s to deterine meaning of a word (not vary it)
(2) Fraud, duress, mistake
(3) Absence of condition precendent
(4) any subsequent modifications

23
Q

Seller warranties

A

express: affirmations/promises made by seller
implied: implied warrant of merchantability (only for merchants who deal in goods of kind sold); that th item “fit the ordinary purpose”
IWF particular purpose: (1) seller know of special purpose and (2) buyer relies on their judgement

24
Q

Disclaiming implied

A

“as is” - can’t be hidden

specific (e.g., mentions merchantability) - must be conspicous

25
Q

Waiving condition precendent

A

Can be waived orally or in writing (if other party detrimentally relies on that waiver, they will be held to it!) unless retract wavier before detriminetal reliance

Wavier can be explicit or implied

26
Q

Condition precendent or promise?

A

Depends on intent of the parties (look at relationship, prior practices, custom, performance needed from third party (if third party is involved, more likley to be condition).

“When” terms are usually considered to be timing, rather than conditions

27
Q

Novation elements

A

(1) previous valid contract
(2) agreement among all parties
(3) immediate extinguishment of previous party’s duties nd
(4) Valid and enforceable new contract

28
Q

Frustration of purpose elements

A

(1) Supervening act or event leading to frsutration
(2) at time of entering into conract it was unforseeable
(3) purpose has been completely destroyed
(4) both parties were aware fopurpose

29
Q

Minor vs. Material breach

A

Material breach factors: BAHWEP amount of benefit received, adequacy of compensation for damages, part performance, hardship, negligent/willful behavior and likliehood breaching party will perfom

Minor: if received substantial benefit of the bargain; you are not relieved from duty to perform, can sue for damages

30
Q

Breach under UCC

A

 Parties right to reject nonconforming goods is cut off by acceptance; when (1) after reasonable opportunity to inspect, they indicate that the goods conform (2) buyer fails to reject within reasonable time or seasonably notify seller or rejection or (3) do any act inconsistent with sellers ownership

31
Q

Buyer may revoke after acceptance (UCC) if

A

(1) defect that substantially impairs value to teh buyer and (2) accepted goods on belief defect woudl be cured OR they accepted becuase it was difficult to discover adn seller assured it was conforming

Revocation must occur within reasoanble time and before any substantial change in goods

32
Q

Seller can cure when

A

there is (1) still contract left or (2) they reasonably thought the goods woudl be acceptace, they have a reasoanble further itme

33
Q

Reliance damages

A

When you can’t figure out your profits (e.g., expectaion) put parties back in position as if contract had never been formed

34
Q

Consequential damages

A

must be forseeable and ascertainable (rp standard)

Breaching party must have known or had reason to know of special circumstnaces

35
Q

Incidental damages

A

Always allowed

36
Q

Liquidated damages

A 
Allwoed when (1) difficult to estimate at time of the contract formation and
(2) amount is reasonable forecast

if not reasoanble, it will be a penalty which is unenforceable

Don’t have to actually have damages to recover

37
Q

reformation

A

o Contract is amended to meet original terms where (1) mutual mistake or (2) innocent or fraudulent mispreresntation by one party

38
Q

Restitution

A

 (1) P conferred a benefit on D
 (2) P did so with reasonable expectation of being compensated
 (3) D knew of had reason to know of expectations and
 (4) would be unjust enrichment if they were allowed to keep the benefit

39
Q

Rescission

A

Remedy available if at tiem of contract formation, there was mutual mistake, unilateral mistake so extreme, mispresenataion, illegality, duress, undue influence, etc

40
Q

Intended beneficairy

A

(1) named in contract to
(2) receives performance directly from promisor OR
(3) has some special relatinoship with promisee to indicate intent to benefit

41
Q

Assignmetn requirements

A

Manifest intent to immediately and completely transfer their rights

42
Q

Assignment is irrevocable if

A

obligor has already performed
assignment is put in writing
assignee can show detrimental reliance

43
Q

Valid Delegation

A

o Not for a contract of personal judgment and skill
o Doesn’t change the obligee’s expectancy (e.g., requirements/outputs contracts)
o Must have present intent to maek a delegation
o If you delegate, you will always remain liable

44
Q

valid assignemtn

A

o Prsent intent (promises in future to assign are never enough) to immediately and completely transfer rights
o Does not have to be in writing

45
Q

Analyzing consideration

A
  • Legal value is usually considered to be either a benefit to the promisor or a detriment to the promisee
  • Most courts focus on the detriment element
  • The promise must induce the detriment and the detriment must induce the promise
  • Therefore, past consideration is insufficient.
  • Here, Resident’s offer came after Sam’s performance so even though there was a detriment to sam, the promise could not have induced Sam’s act
  • There was no bargain and thus, no consideration to support a contract
46
Q

Starting MEE

A

Lay out all fo the - this is a services vs. goods, this is XYZ, definitions

47
Q

if there is a service contracts…

A

Performance has to be “substantial”

condition of compelte performance may be excused if the party has rendered substantial performnace!

48
Q

Material/minor breach factors

A

note: minor breach = performance is substantial; major breach = performance is not substantial

look at (1) amount of benefit received, (2) adequacy of damages, (3) extent of performance, (4) hardship to teh breaching party (5) weather breach was negligent or willful

49
Q

Breaching party suing for damages

A

Exam - think restitution b/c unjust enrichment

50
Q

Duress

A

usually, taking advantage of economic needs is not duress. Can be if (1) witholding something someone wants or needs (2) party threatnes to commit wrongful act tha twould seriously threatn contracting party (3) no adequate means avaialble

51
Q

Good faith modification

A

means honestly in fact and the observance of reasonable commercial standards in fair dealing

Final MBE Review (10 decks)

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