CONTRACTS Flashcards
1
Q
Contract
A
A contract is a bargained for exchange for which there is a remedy upon breach
2
Q
Applicable Law
A
Common Law - Common law is applicable to contracts involving services or real estate
UCC - UCC applies to contracts involving the sale of goods. Goods are tangible, moveable items.
Mixed Contracts: Predominant Purpose Test - If a contract involves both services and the sale of goods, courts determine the contract’s predominant purpose and apply the law accordingly.
3
Q
Formation
A
The formation of a valid contract requires
1) mutual assent (offer and acceptance
(2) consideration
(3) no defenses to formation
4
Q
Offer
A
A valid offer requires a party to
(1) manifest an intent to contract
(2) with definite and certain terms, and
(3) communication of the offer to the offeree
5
Q
Offer - Intent
A
The offeror’s words or conduct must show a present intent to enter into a contract
6
Q
Offer - Definite and Certain Terms
A
An offer must consist of reasonably definite and certain terms
Common Law - the common law requires that all essential terms be included in the contract. Essential terms include the parties, purpose, quantity, and cost. However, a contract will not fail due to missing terms if it is apparent that the parties intended to contract, in which case the court will provide reasonable terms. A contract is presumed to last for a reasonable duration unless a time frame is specified.
UCC - The only essential term required by the UCC is quantity. The UCC gap-fills all other missing terms
7
Q
Offer - Communication to the Offeree
A
The offer must be communicated to the offeree
8
Q
Advertisements
A
Advertisements are considered invitations to deal, not offers. However, an advertisement may be considered an offer it if includes
(i) clear and definite terms and limits who may accept the offer or
(ii) a stated reward
9
Q
Termination
A
An offer may be terminated prior to the offeree’s acceptance
10
Q
Revocation - Direct
A
The offeror may revoke an offer any time prior to the offeree’s acceptance by expressly communicating the revocation to the offeree. Revocation is effective upon receipt.
11
Q
Revocation - Indirect
A
An offeror may indirectly revoke an offer if
(1) his conduct takes definite action inconsistent with his intention to enter into the proposed contract, and
(2) the offeree knows about the inconsistent conduct from a reliable source
12
Q
Rejection
A
An offeree’s power of acceptance may be terminated by rejected. Generally, a rejection is effective upon receipt.
13
Q
Counteroffer
A
A counteroffer operates as a rejection, thereby terminating the original offer and creating a new one.
14
Q
Lapse of Time
A
An offer will be terminated if not accepted within a reasonable amount of time or by a stated deadline.
15
Q
Death or Mental Capacity
A
An offer will be terminated if, before acceptance, the offeror dies or loses the legal capacity to enter into the contract
16
Q
Destruction or Illegality
A
An offer is terminated if its subject matter is destroyed or illegal
17
Q
Irrevocable Offers
A
Offers are revocable unless one of the following is present:
(i) option contracts
(ii) firm offer,
(iii) promissory estoppel, or
(iv) partial performance
18
Q
Option Contracts
A
An option contract is created when the offeree pays consideration to the offeror in exchange for the offeree’s promise to keep the offer open for a specified period of time.
19
Q
UCC - Firm Offer
A
Under the UCC, a firm offer is an offer
(1) by a merchant to buy or sell goods,
(2) in a signed writing,
(3) that assures that it will be held open and cannot be revoked during the time stated, not to exceed three months
Consideration is not required for a firm offer
20
Q
Irrevocable Offer - Promissory Estoppel
A
Under the promissory estoppel doctrine, an offer becomes irrevocable if an offeree detrimentally relies on the offer and that reliance is reasonably foreseeable.
21
Q
Partial Performance - Unilateral Contracts
A
A unilateral contract is created through an offer that may be accepted ONLY by rendering performance. The offer becomes irrevocable once the offeree has begun performance. The offeree must be given the option to complete performance within the specified, or otherwise reasonable, amount of time.
22
Q
Partial Performance - Bilateral Contracts
A
A bilateral contract is created through an offer that can be accepted by a promise or by performance. If the offeree has begun performance, effectively promising to render complete performance, the offer becomes irrevocable.
23
Q
Acceptance
A
Acceptance is the offeree's OBJECTIVE MANIFESTATION OF ASSENT to the contract's terms made in any reasonable manner or method required by the offer. Only the individual or member of a class to whom an offer is made has the power of acceptance.
24
Q
Acceptance - Unilateral Contract
A
A unilateral contract is deemed accepted only upon the completion of performance.
25
Acceptance - Bilateral COntracts
A bilateral contract can be accepted by a promise or by starting performance
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Means of Acceptance - Silence
Silence does not constitute valid acceptance of an offer unless
(1) there's is a PAST HISTORY of silence serving as acceptance, AND
(2) the offeror has given the offeree REASON TO BELIEVE that he may accept by silence or inaction and the offeree, in remaining silent and inactive, intends to accept.
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Means of Acceptance
| UCC - Shipment of Goods
An offer to purchase goods for shipment can be accepted by a promise to ship or shipment of conforming or non-conforming goods
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UCC- Non-Conforming Goods
If the seller ships non-conforming goods, then the offer is accepted, and the contract is breached simultaneously.
However, a shipment of non-conforming goods does not constitute an acceptance if the seller SEASONABLY NOTIFIES the buyer that the shipment is offered only as an accommodation or counteroffer, which the buyer may either accept or reject.
29
Mailbox Rule
Under the Mailbox Rule, an acceptance that is sent through mail is effective UPON DISPATCH.
Thus, if an offeree send an acceptance, but then sends a rejection, a contract has been created even if the rejection is received first.
30
Mailbox Rule - Exceptions
The Mailbox Rule is inapplicable if the offeree sends a rejection first, but then sends an acceptance. In that case, the communication received first will control.
The Mailbox Rule is also inapplicable to an offeror's revocation which is effective upon receipt, option contracts, or firm offers.
31
Additional of Different Terms
| Mirror Image Rule
Under common law, for acceptance to be valid, it must mirror the offer.
Proposing additional or different terms creates a counter offer.
32
Additional or Different Terms
| UCC - Battle of the Forms
Under the UCC, proposing additional or different terms if generally considered an acceptance, thereby forming a valid contract. However, whether the newly proposed terms are included as part of the contract depends on whether the parties are merchants
33
Battle of the Forms
| One or Both Parties are Not Merchants
If one or both parties are not merchants, then the new terms are deemed proposals and become part of the contract upon the other party's approval
34
Battle of the Forms
| UCC - Both Parties are Merchants
Additional Terms - If both parties are merchants then the new terms become part of the contract unless
(i) the terms MATERIALLY ALTER the contract
(ii) the offer EXPRESSLY LIMITS acceptance to the terms of the offer, or
(iii) the offeror OBJECTS to the additional terms within a reasonable time
Conflicting Terms - Conflicting terms between forms cancel each other out. The contract will consist of the agreed-upon terms and gap-fillers provided by the court
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Consideration
Consideration refers to a bargained-for exchange of legal detriment or benefit.
It is a promise to do or abstain from doing some act.
There must be consideration by both parties in order for a contract to be enforceable.
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Sufficient Consideration -
| UCC Requirements Contract
In a requirements contract, the seller agrees to supply the buyer with as much of a particular item as the buyer needs
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Sufficient Consideration-
| Outputs Contract
In an output contract, the seller agrees to see his entire production of a particular item to the buyer.
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Sufficient Consideration-
| Promise Not to Sue
If the plaintiff has a good faith belief that he has a valid claim against the defendant, the plaintiff's promise not to sue is considered adequate consideration.
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Sufficient Consideration-
| Preexisting Duty
Under common law, promising to perform a preexisting legal duty is not adequate consideration because the promisor is already legally obligated to perform unless (i) there is new or different consideration, (ii) there is a third party's promise based upon performance of the original contract, or (iii) there are unexpected circumstances.
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Insufficient Consideration -
| Illusory Promise
An illusory promise does not constitute adequate consideration and is unenforceable due to its indefiniteness and the promisor's having the option of whether to be bound.
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Insufficient Consideration -
| Gifts
A promise to make a gift does not constitute adequate consideration and is unenforceable
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Insufficient Consideration -
| Past Consideration
Past consideration based upon a benefit previously received is not adequate consideration and is not enforceable
43
Consideration Substitutes - Promissory Estoppel
A promise lacking consideration may still be enforceable if
(1) the promisor reasonably expects the promise to induce the other party to act or refrain from acting,
(2) the other party does, in fact, rely on the promise and acts or refrains from acting in accordance with that reliance, and
(3) injustice cannot be avoided unless the promise is enforced
44
Defenses to Contract Formation - Mistake
| Mutual Mistake
A mutual mistake occurs when both of the parties are mistaken about an essential element of the contract. A party may reform or rescind a contract due to mutual mistake if
(1) the mistake was PRESENT at the time of contract formation,
(2) the mistake pertained to a material assumption as to the basis of the contract, and
(3) the party seeking to avoid the contract did not assume the risk of the mistake
45
Defenses to Contract Formation - Mistake
| Unilateral Mistake
A unilateral mistake occurs when one party is mistaken about an essential element of the contract.
The mistaken party may avoid the contract if
(1) the mistake was PRESENT at the time of contract formation
(2) the mistake pertained to a MATERIAL ASSUMPTION to basis of the contract
(3) the party seeking to avoid the contract did not assume the risk of the mistake, and
(4) the mistake would make the contract unconscionable, or the other party knew or had reason to know about tor caused the mistake
46
Defenses to Contract Formation - Misrepresentation
A misrepresentation is an assertion not based in fact made at the time of contract formation.
The misrepresentation
(1) must be fraudulent or material
(2) must be relied upon for assent, and
(3) the party's reliance must be justified
47
Defenses to Contract Formation - Incapacity
Parties must have the capacity to enter into a contract, otherwise the contract will be voidable by the party who lacked capacity.
Necessities - Incapacitated individuals who enter into a contract for necessities are required to pay fair value.
48
Defenses to Contract Formation - Misunderstanding
A misunderstanding occurs when both parties believe that they are agreeing to the same material terms in the contract, but are, in actuality, agreeing to different terms. To use misunderstanding as a defense, the party must show that
(1) a material term in the contract can have two or more interpretations,
(2) each party interpreted the term differently, and
(3) either neither party knew or had reason to know of the misunderstanding or both parties were aware of the misunderstanding
49
Defenses to Contract Formation - Duress
Duress occurs when an improper threat is used to deprive another of his free will and induce him to contract
50
Defenses to Contract Enforcement - Illegality
If the consideration or performance under the contract is illegal, the contract will be unenforceable
51
Defenses to Contract Enforcement - Unconscionability
If a contract of term thereof is unconscionable at the time that contract was made, courts may
(i) refuse to enforce the contract
(ii) enforce the remainder oof the contract without the unconscionable term, or
(iii) so limit the application of any unconscionable term as to avoid an unconscionable result
Procedural Unconscionability - is evidenced by surprise or unequal bargains power between the parties
Substantive Unconscionability - is evidence by substance of the contract that provides for one-sided results.
52
Statute of Frauds
Certain types of contracts must satisfy the Statute of Frauds. To satisfy the Statute of Frauds, the
(1) writing must be
(2) signed by the party to be charged and
(3) contain the essential elements of the transaction
53
Contracts Within the Statute of Frauds
1. Marriage - Contracts made in consideration of marriage
2. Suretyship - One promises to pay the debt of another
3. Real Property - Creating an interest in real property for a minimum of one year
Exception - Part Performance - at least two of the following have occurred: (i) full or partial payment, (ii) possession of the property, (iii) made improvements to the property
4. One year - Contracts that cannot be fully performed within one year
5. UCC- Sale of Goods for $500 or more
Exception - if both parties are merchants, a writing sent by one party within a reasonable time to confirm the contract satisfies the SOF, unless the receiving party objects within TEN days of receipt. The writing need not be signed by the receiving part for the contract to be enforced against him
54
Exceptions - Statute of Frauds
| Promissory Estoppel
Courts may enforce a contract despite a failure to satisfy the SOF if promissory estoppel applies. Promissory estoppel occurs when
(1) the promisor reasonably expects the promise to induce the other party to act or refrain from acting
(2) the other party does, in fact, rely on the promise and acts or refrains from acting in accordance with that reliance, and
(3) injustice cannot be avoided unless the promise is enforced.
55
Exceptions - Statute of Frauds
| Judicial Acknowledgment
An agreement is enforceable despite a failure to satisfy the SOF if the party admits to its existence in pleadings or testimony.
56
Defenses to Contract Enforcement - Frustration of Purpose
Frustration of Purpose excuses performance when a party's purpose for entering into a contract ceases to exist. Frustration of purpose applies when
(1) both parties know the contract's purpose at the time of formation,
(2) the party's purpose for entering into the contract becomes frustrated through no fault of his own,
(3) the purpose becomes frustrated due to an unexpected supervening event outside of the party's control.
57
Defenses to Contract Enforcement - Impossibility
Impossibility excuses performance when unforeseen circumstances that arise after contract formation render performance under the contract objectively impossible
58
Defenses to Contract Enforcement - Impracticability
Performance under a contract is excused based on impracticability upon the
(1) occurrence of an unforeseeable event after contract formation,
(2) which was not caused by the party seeking discharge,
(3) the neither party anticipated at the time of formation,
(4) making performance under the contract unreasonably difficult
59
Condition Precedent
A condition precedent must be satisfied before the other party's obligation to perform under the contract arises
60
Condition Subsequent
A condition subsequent is an event whose occurrence will discharge the other party's duty to perform under a contract.
61
Concurrent Conditions
A concurrent condition is where one party's performance is predicated upon the other's, thus, requiring simultaneous performance by the parties.
62
Satisfaction of Conditions
Objective Standard:
Generally, a condition will be deemed satisfied if a reasonable person would have been satisfied
Subjective Standard - Aesthetic Taste:
When the satisfaction of a condition is based on a party's aesthetic taste, however unreasonable, courts use a subjective standard to determine satisfaction. A party's dissatisfaction must be made in good faith.
63
Waiver of Conditions
The party whom the condition is intended to benefit may waive the condition PRIOR to its satisfaction and may retract the waiver unless the other party detrimentally relies on it.
64
Parol Evidence Rule
The Parol Evidence Rule prevents a party from introducing evidence of oral or written communications that occurred prior to or contemporaneously with a written and signed contract for the purpose of contradicting its terms.
The parol evidence rule is applicable only to a writing that is an integration, meaning that the parties intended the writing to be a full and final expression of the bargain
65
Total integration
If a contract is a total integration, meaning it is a complete writing including all the agreement's terms, parol evidence is inadmissible.
66
Partial Integration
A partial integration is a writing in which some terms are not included.
If a writing is only partially integrated, the parties can introduce evidence consistent with the terms of the contract, but evidence contradictory to the terms of the contract is inadmissible
The UCC presumes all writings to be partially integrated. Therefore courts will allow extrinsic evidence consistent with the writing, unless it is evidence that the parties intended for the writing to be a total integration.
67
Exceptions - Parol Evidence Rule
Parol evidence is admissible to
(i) clarify an ambiguity
(ii) prove the existence of a condition precedent
(iii) raise a defense to contract formation
(iv) resolve a mistake in the writing, or
(v) establish a separate or subsequent contract
68
Exceptions - Parol Evidence Rule
| UCC
Under the UCC, parol evidence of course of dealing, usage of trade, or course of performance may be introduced to explain or supplement the terms of the contract even if the writing is unambiguous.
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Modifications - Common Law
Under common law, contract modifications require independent consideration unless the modification
(i) is fair and equitable and due to the unanticipated circumstances or
(ii) creates new contract obligations for each party
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Modification - UCC
Under the UCC, independent consideration is not required to modify a contract as long as the modifications are made in good faith.
71
UCC - Warranties
| Express Warranty
Any description of goods, affirmation of fact, or promise made by the seller to the buyer, which relates to the goods and becomes part of the basis of the bargain, creates an express warranty that the goods shall conform accordingly.
Disclaimers that unreasonable negate or limit express warranties are INVALID
72
UCC - Implied Warranty of Merchantability
A warranty that goods shall be merchantable is implied in a contract if the seller of those goods is a merchant with respect to goods of that kind and the goods are for the ordinary purposes for which they are used.
73
UCC - Implied Warranty of Merchantability - Disclaimer
The implied warranty of merchantability may be disclaimed by language such as "as is" "with all faults" or other similar language. A disclaimer can be oral or written but must expressly use the term "merchantability" and if in writing must be conspicuous.
74
UCC - Implied Warranty of Fitness for a Particular Purpose
An implied warranty of fitness for a particular purpose applies when a seller has reason to know that the buyer is relying on his expertise to select an appropriate good for a particular purpose.
Disclaimers of an implied warranty of fitness must be conspicuous and in writing.
75
UCC - Perfect Tender Rule
The Perfect Tender Rule requires the seller to render perfect goods and perfect delivery. Any non-conformity constitutes a breach of the contract. The buyer has a right to inspect the tendered goods prior to acceptance unless the contract provides otherwise.
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UCC - Conforming Tender
Once a conforming tender is made the buyer has a duty to accept the goods and a duty to pay for them. Rejection of conforming tender is effectively a breach of contract.
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UCC - Non Conforming Tender - Buyer's Right to Rejection
Any non-conformity is rendered a breach of contract. If the goods or tender of delivery fail to conform to the contract, the buyer can (i) reject the whole, (ii) accept the whole, or (iii) accept any commercial unit and reject the rest. The buyer has a right to inspect the goods before deciding whether to accept or reject them.
78
UCC - Exceptions - Perfect Tender Rule
| Seller's Right to Cure
When the tender or delivery of non-conforming goods is rejected b y the buyer, the seller has the right to cure if the time for performance under the contract has not expired and the seller has notified the buyer of his intention to cure.
79
UCC - Exceptions - Perfect Tender Rule
| Installment Contracts
The Perfect Tender Rule does not apply to installment contracts where the parties have contracted for the delivery of goods in separate lots. The buyer may reject any installment only if the non-conformity substantially imparts the installment's value and the time to cure has expired. However, the contract may be breached when one or more installments substantially impairs the value of the whole contract.
80
UCC - Risk of Loss
| Shipment Contract
Under a shipment contract, the seller must
(1) put the goods in possession of a common carrier and make a reasonable contract for their transportation
(2) arrange for delivery, and
(3) notify the buyer of the shipment
Once the goods have been transferred to a common carrier, the buyer bears the risk of loss
(F.O.B. Seller's place of business)
(if the contract is silent, a shipment contract is presumed)
81
UCC - Risk of Loss
| Destination Contract
Under a destination contract, the seller must deliver the goods to the destination specified in the contract. The seller bears the risk of loss until the completion of delivery.
82
Intended Beneficiary
An intended beneficiary contract is created when two parties into a contract with the mutual understanding and intent that the contract is for the benefit of a third party. An intended beneficiary has the same rights as the contract's parties and can sue to enforce the contract.
83
Intended Beneficiary - Enforcement of Rights
An intended beneficiary may sue to enforce the contract only if his rights have vested. Rights vest when the beneficiary
(i) justifiably relies on them and acts accordingly,
(ii) manifests assent to the contract, or
(iii) brings a claim to enforce the contract
84
Incidental Beneficiary
An incidental beneficiary is a party who benefits from the contract even though the contract's parties did not intend for him to receive such a benefit. Incidental beneficiaries cannot sue to enforce the contract.
85
Assignment
A party may assign his contractual rights to third person, the assignee, who assumes all rights and obligations and will become subject to the same defenses as the assignor.
86
Assignment - Revocability
The parties need not provide consideration for an assignment to be valid. However, if provided, the assignment will be irrevocable. Gratuitous assignments are not revocable.
87
Assignments - Exceptions
An assignment is not allowed if it
(i) materially alters duty or risk,
(ii) is forbidden by law, or
(iii) is forbidden by a contract provision
88
Assignment - Multiple Assignments
If the assignor makes multiple assignments of the same rights, the last assignment will revoke any preexisting revocable assignment. If the previous assignment was irrevocable, the previous assignee will prevail over subsequent assignees. However, if the subsequent assignee is a bona fide purchaser without notice of the previous assignment, whichever assignee to receive payment first will prevail.
89
Delegation
A party may delegate his contractual duties to a third person, a delegatee, unless an exception applies. The delegator remains liable under the contract and can be sued if the delegatee has failed to perform the duty.
90
Delegation - Exceptions
A delegation is not allowed if
(i) the duty requires the non-delegating party's personal skill or judgment
(ii) it is forbidden by law, or
(iii) it is forbidden by a contract provision
91
Novation
A novation is when all parties agree to replace the delegator with the delegatee in the contract, thus, releasing the delegator from liability under the contract.
92
Breach of Contract - Material Breach
A breach of contract is material when the non breaching party does not obtain the substantial benefit of his bargain because the other party failed to perform under the contract.
A material breach of the contract will excuse the non-breaching party's performance, and the non breaching party will immediately be entitled to sue for remedies pursuant to the breach, including any applicable damages.
93
Time is of the Essence Clause
A party's failure to perform by a specific date is not considered a material breach unless the contract contains a time is of the essence clause
94
Minor Breach
A breach of contract is minor when the party has substantially performed under the contract.
The non breaching party is entitled to pursue remedies for the minor breach but must still perform under the contract.
95
Minor Breach with Anticipatory Repudiation
a minor breach becomes a material breach if it is coupled with anticipatory repudiation
96
UCC - Breach
Under the UCC, the parties' performance must strictly comply with the contract or will otherwise be in breach
Perfect Tender Rule Analysis -
97
Anticipatory Repudiation
An anticipatory repudiation occurs when a party unequivocally manifests his unwillingness or inability to perform under the contract prior to the time of performance.
98
Anticipatory Repudiation - Non Breaching Party's Options
When anticipatory repudiation has occurred, the non-repudiating party may
(i) sue immediately,
(ii) suspend his own performance and wait until the performance date to sue, or
(iii) urge the repudiating party to perform
99
Anticipatory Repudiation - Retraction
The repudiating party may retract its repudiation, unless the non-repudiating party has
(i) materially changed his position based upon reliance of the repudiation,
(ii) accepted the repudiation, effectively cancelling the contract, or
(iii) filed a breach of action for breach
100
Anticipatory Repudiation - Adequate Assurances
A party with reasonable grounds for insecurity regarding the other party's ability to perform may suspend his own performance and demand, in writing, adequate assurances that the other party will perform the contract.
The other party's failure to provide adequate assurances within a reasonable amount of time can be treated as a repudiation.
101
Adequate Assurances - UCC
Under the UCC, adequate assurances must be provided within 30 days
102
Accord and Satisfaction
In an accord contract, an obligee promises to accept a stated performance in satisfaction of the obliger's existing duty. Satisfaction is when the accord contract is performed, thereby discharging both the original contract and the accord contract
103
Accord and Satisfaction - Breach
If there is a breach of the accord, the obligee may enforce either the original contract or the accord contract.
104
Duty to Mitigate
A plaintiff has a duty to mitigate his losses to the extent possible. Th plaintiff's recovery will be reduced for failing to mitigate damages
105
Expectation Damages
Expectation nDamages are those which result directly from the breach of contract and are intended to put the plaintiff in the position he would have been in had the contract been performed.
(contract price - market price) + (consequential + incidental) - ($ saved)
106
Consequential Damages
Consequential damages are those which result indirectly from the defendant's breach. To recover consequential damages, the plaintiff must show that the damages
(1) were foreseeable at the time of contract formation
(2) were caused by the defendant's breach and
(3) can be calculated with reasonable certainty
107
Incidental Damages
Incidental damages are reasonably incurred expenses in the plaintiff's attempt to remedy the breach of contract
108
Reliance Damages
Reliance damages are available as an ALTERNATIVE when expectation damages are too uncertain to calculate. They are incurred based upon expenditures made as a result of relying on the contract and are meant to put the plaintiff in the position he would have been in had the contract never existed. The plaintiff's reliance on the contract must have been foreseeable.
109
Liquidated Damages
Liquidated damages are specified by the parties at the contract's formation as a reasonable estimate of the actual damages that can be recovered in the event of a breach. Generally, liquidated damages are used when the actual damages are too difficult to calculate.
110
Nominal Damages
Nominal Damages are available when the elements of a cause of action can be established but no substantial loss is sustained
111
Punitive Damages
Punitive damages are generally unavailable for standard breach of contract claims
112
Specific Performance
Under specific performance, the plaintiff may request that the court order the defendant to perform the contract. The following elements must be met
(1) a valid contract exist, with definite and certain terms
(2) the plaintiff has performed or is able to perform,
(3) monetary damages are inadequate,
(4) feasibility of the court's enforcement, and
(5) no defenses exist (laches, unclean hands)
113
Quasi Contract
A quasi contract is created when
(1) no valid contract exists
(2) but the plaintiff conferred a benefit upon the defendant
(3) for which the plaintiff reasonably expected to get paid
(4) the defendant expressly or impliedly asked for the benefit, and
(5) the defendant would be unjustly enriched if he were allowed to retain the benefits
114
Replevin
Replevin is an action to recover personal property wrongfully taken by the defendant. To recover, the plaintiff must have the right to posses the property.
115
Ejectment
Ejectment is an action to recover real property actually and wrongfully possessed by the defendant. To recover, the plaintiff must (1) have a right to possess the property and (2) establish title
116
Reformation
Reformation is a re-writing of a contract to accurately reflect the parties' original intent. it is available when there is a valid written contract, but the parties overlook a mistake, or the contract resulted from fraud, misrepresentation, or duress. Reformation is unavailable if a valid equitable defense applies
Mutual Mistake
Unilateral Mistake
117
Rescission
Rescission cancels a contract due to invalid contract formation. If the contract is rescinded, the plaintiff must
(1) give notice and
(2) return any benefits received from the defendant
The plaintiff may also bring an action for replevin or restitution. Rescission is unavailable if a valid equitable defense applies or the plaintiff previously sued for damages under the contract
118
UCC - Buyer's Remedies for Failure to Tender Goods
| Damages
When the Seller fails to tender, the buyer may recover damages measured by the different between the market price at the time of breach and the contract price plus incidental and/or consequential damages minus expenses saved.
119
UCC - Buyer's Remedies for Failure to Tender Goods
| Cover
If the buyer purchases substitute goods to cover for the seller's failure to tender, he may recover
(cost of cover - contract price) + (incidental +consequential) - (expenses saved)
120
UCC - Seller's Remedies
| Right to Price
The seller may recover the full contract price if
(i) goods are accepted
(ii) conforming goods are lost or damaged, or
(iii) if the seller is unable, after reasonable efforts, to resell the goods
121
Seller's Remedies - Buyer's insolvency
Upon discovering that the buyer is insolvent, the seller may refuse to deliver the goods, except for cash including payment for all goods delivered under the contract and ay stop the delivery of goods in transit
Credit - Upon discovering that the buyer has received goods on credit while insolvent, he may reclaim the goods upon a demand made within ten days of receipt
122
Seller's Remedies - Wrongful Rejection by Buyer
Where the buyer wrongfully rejects or revokes acceptance of goods, the seller may
(i) withhold or stop delivery
(ii) resell the goods and recover damages
(iii) recover damages for non-acceptance or
(iv) cancel the contract
123
Seller's Remedies - Lost Volume Seller
To qualify as a lost volume seller, the seller must show he would have been able to sell both the breaching buyer and the buyer to which the goods were resold. if the resale of the goods is inadequate to put the seller in as good a position as performance would have put him in, then the seller is entitled to damages measured by the profit which the seller would have made from full performance by the buyer plus any incidental damages.
