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MBE > Contracts > Flashcards

Contracts Flashcards

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1
Q

Applicable Law

A

UCC – Sale of Goods

CL – Everything else

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2
Q

UCC
Goods

A

moveable, tangible things

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3
Q

UCC
Merchant

A

One who deals in goods of the kind or holds himself out as having specialized knowledge/skills

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4
Q

Mixed K?

A

Predominant Purpose Test

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5
Q

Formation

A

Mutual Assent + Consideration

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6
Q

Mutual Assent

A

Offer + Acceptance

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7
Q

CL Offer

A

Manifestation of Intent to enter into the bargain (intent)
+
Definite and certain terms
+
communication to offeree

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8
Q

UCC Offer

A

Inviting acceptance in any manner/medium reasonable in the circumstances

Quantity must be certain/capable of being certain

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9
Q

Offers in Jest

A

NOT offers

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10
Q

Prelim negotiations in K formation

A

Invite to offer

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11
Q

Solicitation of an offer

A

Preliminary negotiation– invite to bargain

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12
Q

Ads / K Formation

A

Invite to deal
exc: words of commitment + offeree can be id-ed with specificity

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13
Q

Rewards/Auctions

A

Only offer if clear who can accept/win

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14
Q

Unilateral K

A

Promise for Performance

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15
Q

Bilateral K

A

Promise for Promise

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16
Q

Quasi K

A

Implied in fact– restitution remedy for UE

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17
Q

Duty of GF and FD

A

Implied in every K

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18
Q

Definite and Certain Terms (QTIPS)

A

Quantity – stated or ascertainable
Time (if missing, reasonable)
ID parties
Price (UCC if missing, reasonable at time of delivery)
SM

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19
Q

Void / Voidable/ Unenforcable

A

Void – never had legal effect

Voidable– one/both may elect to voic

Unenforceable – bc defense applies

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20
Q

Termination of Offer

A

Rejection by Offeree

C/O (not just inquiring)

Revocation

Lapse of time

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21
Q

Rejection Methods

A
  • Express
  • Counteroffer
  • Conditional Acceptance (becomes new offer) (exc: cond that would be included anyway)
  • Acceptance with additional terms
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22
Q

Acceptance with additional terms

A

CL - MIR tf AT = C/O
UCC
merchant = AT become part of K unless exc applies
non merchant involved = terms govern + AT are mere proposals/excluded

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23
Q

Revocation

A

Offeror may revoke her offer = terminates offeree’s power of acceptance

  • Direct or Indirect
  • Unambiguous words/conduct by offeror
  • Offerree is aware of ^
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24
Q

Revocation Effective

A

upon receipt

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25
Q

Revocation of Unilateral

A

Start of performance = irrevocable

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26
Q

Irrevocable Offers

A

Option K
UCC Firm OFfer
DR by Offeree

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27
Q

Option K

A

Promise to keep offer open

CL – consideration
UCC – no consideration

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28
Q

UCC Firm Offer

A

Merchant + signed + in writing + assures offer held open for time stated

3 mos max – then becomes revocable

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29
Q

Acceptance

A

Offeree’s (only) clear expression of assent to offer
within reasonable time
in response to offer
in manner required by offer (no method → reas)

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30
Q

UCC Acceptance by Shipment

A

M may accept by:
Promise to ship
Prompt shipping conforming goods
Prompt shipping nonconforming goods (acc and breach)

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31
Q

UCC AT Acceptance

Battle of the Forms

A

One or more party non merchant = mere proposal (op can agree to)

Both merchants = auto part of K unless:

Offer expressly limits acceptance to its terms

AT creates material alteration

Objection by offeror- reasonable time

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32
Q

Knock Out Rule

A

Maj rule

Conflicting terms knock each other out UOA

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33
Q

UCC Gap Fillers

A

Supply missing terms

Price = reas at time of delivery

Delivery = B picks up from S

Time of shipment = reas

Time for payment = upon receipt of goods

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34
Q

Additional Terms Minority Rules

A

Treat as diff terms

Fall out rule (offeror’s terms control)

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35
Q

Detrimental Reliance

A

Temp irrevocable if:
offeree has made prep to perform/perform in part + reas detr rel on offer s perf in part

Unilateral - perf begun = temp irrev
Bilateral - Prep to perform may make irrev

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36
Q

Termination - Lapse of Time

A

If no time limit set = reasonable

If oral – end of convo

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37
Q

Death/Incapacity

A

Either party = power to accept terminated automatically
exc: Option K

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38
Q

MBR

A

Offer = effective on receipt

Rejection / Revocation /CO effective on receipt

Acceptance= effective upon dispactch

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39
Q

MBR Exceptions

A

If offer stipulates not accepted until received → offer controls

Option K = receipt

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40
Q

MBR and Simultaneous Offer/Acceptance

A

FIRST sent wins

Acc first - acc effective on dispatch

Rej sent first – acc only effective if arrives before rej

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41
Q

Acceptance by Performance

A

UOA – partial perf (bi) and complete (uni)

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42
Q

Acceptance of Unilateral K by Performance

A

Failure to perform does not = breach bc no K formed

Irrevocable between start of performance and completion

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43
Q

Acceptance of Bilateral K by Performance

A

Part Perf = acceptance

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44
Q

Acceptance by Shipping NC Goods

A

Without acknowledgement = acceptance + breach

With Acknowledgement = “accommodation” = c/o

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45
Q

Promissory Estoppel

(substitute for consideration)

A

Promisor reasonably expects reliance by promisee

Promisee acts/refrains from acting in DR

Injustice w/o enforcement

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46
Q

Consideration

A

Bargained for Exchange (mere peppercorn)

benefit to promisor + detriment to promisee

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47
Q

“BFE”

A

Promise must induce the detriment and vice versa

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48
Q

Pre-Existing Duty Rule

A

Promise to perform a PED is NOT valid consideration

Exc: if existing duty owed to TP, will not violate PED Rule

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49
Q

Invalid Consideration

A

Illusory promises

promises of gifts/conditional gifts

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50
Q

Categorically Inadequate Consideration

A

Gifts

Sham/Nominal

Past Consideration unless exception

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51
Q

Past Consideration Exceptions

A

New promise to past debt now barred by SoL

New promise to pay past benefits previously received (emergency)

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52
Q

Illusory Promise

A

not supported by consideration (not promising to do anything)

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53
Q

Output K

A

B agrees to buy all of S’s output - specified time

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54
Q

Req K

A

Parties agree– S as exclusive source for B’s needs – specified time

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55
Q

Defenses to Formation

IM MIDSUM

A

Incapacity

SoF

Illegality

Miresp/Fraud

Duress

Misunderstanding

Mistake

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56
Q

Incapacity

A

Infants/mentally incompetent

intoxicated (if OP knows)

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57
Q

Incapacity + Right to Disafrrim

A

Person who lacked capacity can void K

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58
Q

Infancy Incapacity Exceptions

A

K involving a minor may be enforced if

Implied Ratification – gain majority and retained benefit

For necessities

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59
Q

Minor Implied Ratificaion

A

Agreement entered when under 18

Since gained capacity

Benefits retained

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60
Q

SoF

My Legs

A

Marriage

Year (1)

Land

Executor

Guarantor

Sale of goods +$500

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61
Q

SoF

A

Ks subject to require special proof of existence

Falls within SoF → Writing + Signed PTBC

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62
Q

SoF

UCC Exception

A

Signed writing not required where:

both Ms

Party asserting received signed writing memorializing terms + failed to respond within 10 days

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63
Q

SoF Performance as Satisfaction

A
  • Service K – FULL only
  • Sale of goods K – delivery and acceptance (unless custom then subst start toward perf sufficient)
  • Real Estate – Part performance 2/3: Full/part payment; possession; improvements
64
Q

SoF Marriage

A

Promise made in consideration of marriage

(ex: marry my son and I’ll buy you a car)

65
Q

SoF 1 Year

A

Service Ks incapable of being performed within 1 year

66
Q

SoF Land

A

Transfer of property interest

Leases greater than 1 year

67
Q

SoF

Executor Promise

A

Promises by executors/admin

to pay debts of the decedent’s estate

68
Q

SoF

Gaurantees

A

Promise to pay the debt of another (from your money)

69
Q

SoF

Sale of Goods +$500

A

Exceptions where SoF will not apply:

Goods accepted or paid for

Admission in pleading/ct testimony

specially manufactured goods not suitable for sale to other

70
Q

SoF Exceptions

A

Made in consideration of M –mutual promises

Part Performance

Pay debt of another but main purpose benefits payor

K cannot be performed in one year but already performed

Sale of Goods exceptions

71
Q

SoF Writing Req

A

Made at time promise is made

CL - indication of K; essential terms; signed PTBC

UCC– some signed writing specifying qty

72
Q

Merchant’s Confirmatory Memo

A

Exception to SoF

Must be signed by sender AND recipient

Both Ms

Know contents

Recipient does not reject within 1- days

73
Q

Illegality

A

SM = K not enf

Illegal Purpose = only enf by one who did not know

(Based on law at time of K formation)

74
Q

Misrepresentation

A

One party makes false stmt mat fact (need not be int’l)

justifiable and actual reliance by other

P suffers pecuniary loss

75
Q

Fraud

A

Int’l misrep prior to signing

false rep mat fact

knowledge of falsity (scienter)

intent to induce reliance of other

Justifiably relied

(p must suffer pecuniary loss)

76
Q

UI

A

K entered into under excessive pressure + someone susceptible to

(voidable)

77
Q

Duress

A

w/f act/threat that overcomes party’s free will

Physical - void

Nonphyiscal - voidable by threatened party

78
Q

Unconscionability

A

Ct may refuse to enforce where K so unfavorable to one party that no reas person would have agreed

79
Q

Mutual Mistake

A

Mistake by both parties

voidable by affected party if:

basic assumption of fact that existed at time of K formation + mat effect on deal + adv effected party did not assume the risk

80
Q

Unilateral Mistake

A

Made by one party– will not void K formation

Unless→ Mistaken party can void if can show : OP knew/sk of mistake

81
Q

Misunderstanding

A

Ambiguity concerning k

Neither know– no K formed unless intended same wrong meaning

One Knows– K formed according to misunderstanding party’s intent

Both know– no k unless intended same wrong meaning

82
Q

UCC Perfect Tender

Acceptance

A

B does not accept goods until received and has had chance to inspect = notify

B confirms → B indicates will keep despite nonconformity

B Silent → fails to reject

83
Q

UCC Perfect Tender

Rejection

A
84
Q

UCC Perfect Tender

A

Seller’s performance must be perfect with respect to goods + manner of delivery

85
Q

UCC Perfect Tender Rejection

A

Imperfect tender – B can:

Retain + sue for dmgs

Reject some/all and sue for dmgs

86
Q

UCC PTR Rejection Req

A

If B rejects:

Notify S in reas time

hold rejected goods using reas care

Give seller reas time to arrange for removal

87
Q

PTR and Installment Ks

A

Rejection – B may only IF

Defect substantially impairs installment

+

Defect cannot be cured

(installment ONLY not entire K)

88
Q

PTR

S’s option to Cure

A

S gives notice to B of intent to cure + time for performance has yet to expire

S had reas grounds to beleive NCG would be acceptable

89
Q

PTR Acceptance Revocation

A

B cannot reject goods after acceptance unless discovers defect that subst impairs goods and either:

B accepted on reas belief defect would be cured and has not, or

B was excusably ignorant of defect

90
Q

Substantial Performance

A

CL - one party substantially performed = OP obligated

91
Q

Material Breach

A

One party’s failure to perform substantially deprives the other of the benefit of the bargain

Excuses OPs performance

(no MB if performance not on time, but within reas time after due)

92
Q

Conditions

A

Agreed upon limitations on performance K – performance is contingent on happening of condition

93
Q

Condition Precedent

A

Must occur before performance is due

Non occurrence of excuses OP performance

94
Q

Condition Subsequent

A

Occurs after performance begun + excuses further if not met

95
Q

Insecurity

A

Party has reasonable grounds to believe OP will not perform

96
Q

Demand for Adequate Assurances

A

Insecure party must: demand in writing

No response 30 days - K repudiated (treat as breach)

97
Q

Minor Breach

A

Non breaching party may recover damages– must still perform

98
Q

Anticipatory Repudiation

A

Unambiguous act

prior to full performance

indicating non perforamnce

99
Q

AR Withdrawal

A

AR party may w/d unless OP:

materially changed position in reliance on repudiation

cancelled entire K in response

indicated they consider the repudiation to be final

100
Q

Non Repudiating Party Response to AR

A

Treat as total breach and sue

Suspend performance until due date and wait to sue

Treat as offer to rescind and discharge

Ignore and urge performance

101
Q

Impossibliity

A

Objectively Impossible – Excuses Performance

102
Q

Impracticability

A

Performance is only possible with extreme and unreasonable difficulty = performance excused

103
Q

Frustration of Purpose

A

Unexpected event destroys one/both party’s purpose for entering K

Unforeseen event not fault of frustrated party

non-occurrence of event was a basic assumption of the K

104
Q

Recission

A

Discharges Duties under the K when parties agree to rescind

May be oral (unless subj to SoF)

Cannot if TPB vested

105
Q

Unilateral Rescission

A

One party wants to– granted if defense to K enforcement

106
Q

Modification

A

Subsequent change to terms of K (parties agree)

CL: MA + consideration (never oral)

Modern – no consideration if fair/ due to circ unforeseen when k made

UCC- NO consideration needed, but MA + GF

107
Q

Novation

A

Obligee (who receives performance) expressly agrees to accept performance of the delagatee (new TP)

All parties (incl tp ) agree to NEW K + new k extinguishes duties between original parties

108
Q

Accord and Satisfaction

A

Accord = one party promises to render substitute perf + OP promises to accept

Accord = new performance (once perf- discharges og duty)

Consideration required

109
Q

Accord and Satisfaction Consideration Rules

A

Consideration my be less if:

different than original BFE

paid to TP

resolves GF dispute concerning original K

110
Q

TPBs

A

Benefits from K between OPs

Intended - promisor intended to benefit

Incidental- benefits but wasn’t intended to

111
Q

Intended TPB

A

Can enforce K; has rights under K

112
Q

Incidental TPB

A

Cannot enforce K; has no rights under K

113
Q

Rights of TPBs

A

Vest when:

Accepts benefits (learn and agree)

Sues to Enforce (learn and sue)

DR on K (learn and rely)

114
Q

TPB Enforcment

A

TBP → sue promisor

Promisee → sue promisor (law AND equity)

(TPB can only sue promisee if TBP creditor beneficiary)

115
Q

Assignment

A

Transfer of rts under K to TP

Assignor receives perf

Assignee is TP

Obligor will perform

116
Q

Assignment Reqs

A

NO consideration

Assignor- only assign rights they have in the K

CL - cannot assign if substantially changes duties of obligor

117
Q

Assignment Revocability

A

Consideration – irrevocable

Gratuitous– revocable unless:

obligor performed / assignee received written claim/tangible object of rt to collect / DR by assignee

118
Q

Assignee Right to Sue

A

Obligor - for non performance

Assignor - for w/f revocation

119
Q

Delegation

A

Delegator assigns duties she owes obligee to TP (delegatee)

Delegator remains liable

nondelegable - PJ/skill; mat changes expectancy; special trust; K provision prohibts

120
Q

Expectation Damages

A

Standard measure– in place would have been if K performed

121
Q

Reliance

A

Expectation too speculative

Put P in position if K never made

122
Q

Consequential

A

Dmgs f/s at time of breach + when formed, d had reason to know P would suffer special dmgs

UCC– only B can recover

123
Q

Incidental

A

Expenses reasonably incurred by B or S as direct result of breach (cover; storing goods; inspecting; reselling)

124
Q

Liquidated

A

Amt stipulated in K

Allowedable where dmgs = diff to calculate + reas approx (not punitive)

125
Q

Nominal

A

P’s rights violated; no financial loss

126
Q

Punitive

A

NEVER for K

127
Q

Duty to Mitigate

A

P cannot recover for reasonably avoidable dmgs

128
Q

Equitable Remedies

A

Reformation – rewrite K to accurately reflect parties’ intent

Rescission– no mtg of the minds; undo K

Grounds: Fraud, misrep, duress mistake

Defenses: Laches and UH

129
Q

Quasi K

QM

A

Implied K to prevent injustice

value of benefit incurred

130
Q

Replevin

A

Return of PP

131
Q

Ejectment

A

Return of RP

132
Q

Specific Performance

A

Valid k + conditions satisfied + inadequate legal remedy + mutuality of performance + feasibility of enforcement + no defenses

(ChaCha Is Fairly Difficult)

133
Q

Laches

A

Unreasonable delay that is prejudicial to D

134
Q

UH

A

P engaged in unfair dealing

135
Q

Dmgs

S breach/ B has goods

A

K price minus Cover price (if B covered OR

K price minus mkt price (time B learned of breach)

(can also get incidental + conseq)

136
Q

Dmgs

S breach/ B has goods

A

Std = difference between K price and goods value as tendered

137
Q

Dmgs

B breach/ S has goods

A

If S resells → K price minus resale price

If S did not resell → K price minus mkt price

138
Q

Dmgs

B breach, B has goods

A

Full K price

139
Q

LV Seller

A

Can recover if:

enough supply to make both sales

would have made both sales

would have made profit on both

(+incidental but not consequential)

140
Q

Conversion

A

FMV at the time of conversion

141
Q

Parol Evidence Rule

A

Bars evidence of negotiations and agreements before K becomes integrated

exc: K partially integrated or AT would ordinarily be in sep agreement

142
Q

PER Partially Integrated

A

Intended to be final expression of agreement but not intended to include all details

NO EE to contradict term; EE to supplement term

143
Q

PER Fully Integrated

A

Intended to be final agreement and intended to include all terms

No EE to contradict OR supplement term

144
Q

PER Exceptions

A

K formation/enforcement duties

CPs to Ks effectiveness

Ambiguous terms

145
Q

PER and UCC Ambiguous Terms

A

Course of Performance (these parties)

Course of Dealing (general parties)

Usage of Trade (industry)

146
Q

Express Warranty

A

UCC – implied – can be disclaimed

Promise about quality or feature of item

Breached – if falls short

147
Q

IWM

A

Fit for ordinary purpose

148
Q

Implied Warranty F for PP

A

S warrants goods are fit for Bs purpose

B has particular purpose

S knows

B relies on S

149
Q

Disclaiming Warranties

A

Limits liability

Remedy – limits recovery upon breach

150
Q

Damages to Warranty Breach

A

Difference between current value and value as warranted by S

151
Q

UCC Risk of Loss

Shipment by Carrier

A

Shipment K → seller obligated to ship but RoL passes once delivered to carrier

Destination K → seller obligated to ensure goods reach B; RoL to B when B takes

152
Q

USS Risk of Loss

NonCarrier Delivery

A

Merchant - RoL to B - physical possession

NonM Seller- RoL to B - upon tender of delivery

153
Q

UCC Risk of Loss

Goods Destroyed before RoL passes

A

K avoided/no fault

154
Q

FOB location

A

Seller has risk/expense to get goods to named location

B has RoL once at location

155
Q

Construction K and Natural Forces

A

Land destroyed during construction – contractor responsible under original K + no QR work work completed

Residence completed → RoL shifts to owner

MBE (4 decks)

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