Contracts Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

Unilateral Mistake

A

Contract based on the mistake of one party may seek reformation by showing
(1) P was mistaken K terms;
(2) the mistake went to a material term that was a basic assumption of the contract;
(3) that the defendant-party knew of the plaintiff’s mistake; and
(4) the defendant failed to correct the mistake or even took advantage of the mistake.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Merchant (UCC)

A

Merchant is one who deals in goods of the kind OR by virtue of his / her professions holds himself out as having peculiar knowledge in the goods involved

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Acceptance (UCC)

A

offer to buy goods may be accepted by
(1) prompt shipment
(2) by a promise to ship

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

UCC Battle of the Forms

A

Aditional terms included in the acceptance will become part of the contract unless
(1) offeror’s offer was expressly conditioned on only the terms included OR
(2) rejects the additional terms in a reasonable time OR
(3) the terms materially change the bargain.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Consideration

A

Bargained-for exchange of legal value.
Each promise must induce the detriment, and vice versa.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Compensatory Damages

A

Made up of (1) expecation damages and (2) consequential damages

Damages must be
- Forseeable
- Causal
- Certain
- Unavoidable (duty to mitigate)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Expectation Damages

A

Intended to give the non-breaching party the benefit of the bargain and to put them in a position as if the contract had not been breached.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Incidental Damages

A

Expenses a non-breaching party incurs as a result of a breaching party’s breach.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Consequential Damages

A

awarded if a reasonable person foresees at the time of contract formation such damages will result from breach.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Promissory Estoppel
(Contract)

A

(1) consideration not required if the fact indicate that the promisor should be estopped from not perfoming
(2) if promisor should have reasonably expected that promise to induce action or forebearance
(3) and such action or forebearance was in fact induced

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Promissory Estoppel
Damages

A

If promissory estoppel found,
(1) might be able to be rewarded expecation damages (what was promised
(2) might be able to get reliance damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Rescission

A

Rescission is a contract remedy available where one party seeks to void a contract.
Lack of mutual assent is a basis for rescission of a contract where one party shows misrepresentation, mutual mistake or non-disclosure

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Misrepresentation (k)

A

(1) intentionally,
(2) made a misrepresentation of material fact,
(3) intending that the other party rely on that misstatement,
(4) the other party did in fact rely on that misstatement, and
(5) damages were suffered as a result.

Non-disclosure: party fails to disclose a material fact of the contract which forms the basis of the contract and the other party has no reason to know of the failure to disclose.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

“as is”.

A

Common law: “as is” was strictly construed.

Modern trend is to relax the enforcement of “as is” clauses where one party misrepresented or committed fraud.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

defense of non-disclosure,

A

did not disclose a material fact that formed the basic assumption of the K and the party relied on that assumption

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Mutual Mistake

A

Both parties are mistaken to basic assumption on which the agreement was made. Adverlsy mistake party may rescind if
(1) mistake of fact that relates to basic assupmtion of K
(2) material impact on deal
(3) impacted party DID NOT assume the risk

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Firm offer under UCC

A

Irrevocable offer by merchant to buy or sell goods without consideration
(a) 3 requirements:
(i) Offer made by a merchant +
(ii) In a writing signed by the merchant +
(iii) Expressly stating it will be held open

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Parol Evidence Rule

A

Bars introduction of extrinsice evidence made prior or contemporaneous to the execution of the K and which contradicts or varies the terms of the integrated contract
(1)Merger clause is highly persuasive but not determinative.
(2) No PE to reform or contradict written terms, unless there’s a mistake in integration.
(3) PE ok to argue defense to enforcement, explain ambiguous terms, to provide add’l terms if only partial integration, or add’l terms would ordinarily be in sep agmt.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Condition vs Promise

A

A condition precedent to performance is a term in the agreement that must be satisfied strictly in order for the party’s performance to be due.

If the condition never occurs, the party never has a duty to perform.

A promise, on the other hand, only needs to be substantially performed under the common law in order for the other party’s performance to become due.

Courts favor promises over conditions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Advertisements (Offer)

A

Advertisements are typically invitations to deal and not offers to sell.

Exception: Ads containing words of commitment and where the offeree can be identified with specificity can be sufficiently definite to be an offer.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Catalogs

A

Catalogs with specified goods and prices are typically an invitation to deal, not an offer.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Rewards and auction bids:

A

can be offers if it is clear who can accept/win.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Definite and Certain Terms for Offer (Common La)

A

Quantity: The quantity term must be stated or ascertainable.

Time of performance can be a missing term supplied by the court as a “reasonable” time.

Identity of the parties: The parties must be identified.

Price: Price must be stated for real estate contracts. However, the UCC provides “reasonable price at the time of delivery” if missing.

Subject matter must be identified clearly.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Offer UCC

A

Offer (UCC): Inviting acceptance in any manner and by any medium reasonable in the circumstances (the UCC allows for a more liberal inter pretation and finds offers easily; a purchase order for example is typically an offer under the UCC). The UCC will use gap fillers for missing terms except for subject matter and quantity.

25
Q

Termination of offer

A
  • Rejection
  • Counteroffer
  • Revocation
  • Lapse of time
  • Death or incapacity
26
Q

Mailbox rule exceptions:

A
  • Offer says otherwise
  • Option k: upon receipt
  • Both acceptance & rejection
    (i) Rejection 1st: acceptance if received 1st
    (ii) Acceptance 1st: on dispatch
27
Q

Irrevocable offers

A
  • UCC firm offers (1) By a merchant (2) Signed writing (3) 3-month max.
  • Option contract
  • Detrimental reliance
28
Q

Irrevocable Offers - Detrimental Reliance

A

An offer will be temporarily irrevocable if the offeree has made prepara tions to perform in reasonable detrimental reliance on the offer, or has performed in part. a.

Unilateral contract: Once performance has begun, the offer is temporarily

Bilateral contract: Making preparations to perform may make the offer irrevocable if justice requires (e.g., subcon tractor

29
Q

Acceptance

A

An acceptance is the manifestation of assent to the terms of the offer.

30
Q

Quasi-Contract
(Not a contract at all)

A

One party is unjustly enriched at the expense of the other party, so that the enriched party must pay restitution to the other party equal to the unjust enrichment.

31
Q

Substitute for Consideration

A

Promissory estoppel
Detrimental reliance
good faith modification under the UCC

32
Q

Unconscionability

A

(1) Inconspicuous Risk-Shifting Provisions
(2) Contracts of Adhesion—“Take It or Leave It”
(3) Exculpatory Clauses
exculpatory clause releasing a contracting party from liability for
their own intentional wrongful acts is usually found to be unconscionable
because such a clause is against public policy in most states.
Exculpatory clauses for negligent acts may be found to be unconscionable
if the clauses are inconspicuous (as discussed above), but
they commonly are upheld if they are in contracts for activities that
are known to be hazardous (for example, a contract releasing a ski hill
operator for liability for negligence often will be upheld).
(4) Limitation on Remedies
Limitations on Remedies
A contractual clause limiting liability for damages to property generally
will not be found unconscionable unless it is inconspicuous. But,
a contract that limits a party to a certain remedy and that remedy fails
of its essential purpose (for example, the contract limits remedies to
repair and the item cannot be repaired), the limitation may be found
unconscionable and courts will ignore it.

33
Q

when is writing exception under SOF under UCC

A

Specially made goods,
Written confirmation by a merchant, Admission in court, or Performance.
These facts take the contract out of the Statute of Frauds.

34
Q

Merchant Confirmitory Memo

A

Exception: merchant’s con firming memo
- 2 merchants
- 1 receives confirmation
- Both are bound
- Unless objection within 10 days

35
Q

Conditions - Overview

A

condition is an event that must occur before performance of the other party is due. If it does not occur, performance of the second party is excused. Conditions can be express or constructive

36
Q

Express vs. Constructive Conditions

A

Express: An express condition is created by the language of the par ties demonstrating the intent to have a condition (e.g., “upon condition that”).

Constructive: A constructive condition is one supplied by the court for fairness. Each parties’ performance is generally a constructive condition to the subsequent performance required by the other party.

37
Q

Parol Evidence Rule Overview

A

Partial integration
◆ PE not to contradict
◆ PE okay to supplement

Total Integration
◆ PE not to contradict
◆ PE not to supplement

38
Q

Exceptions to PER

A

(1) Subsequent communications
(2) K formation defect evidence
(3) Condition precedent to k effectiveness
(4) Interpret ambiguous terms (interpret in the following order)
◆ Express Terms
◆ Course of performance
◆ Course of dealing
◆ Usage of trade

39
Q

Waiver of Condition

A

Party condition is intended to benefit always has power to waive it, can waive by
(1) Receiving and keeping a beneift
(2) failure to insiste on compliance can operate as waver
(3) waiver can be retracted unles the other party detrimentally relied

40
Q

Contract Modification

A

CL (1) mutual assent (2) consideration
UCC (1) mutual assent (2) good faith (3) no compensation

41
Q

Assignment

A

Assignment: transfers rights
* No consideration required
* Gratuitous assignment okay
* Assignee stands in shoes
* Can’t assign if there is a material change in duty/risk

42
Q

Delegation (Contract)

A

appointing to a third party the duties owed under the contract.
(1) Delegator (party owing performance) remains liable.
(2) Exception: Can’t delegate duties of special skill or judgment.

43
Q

Novation

A

occurs when
(1) obligee (party receiving perfor mance) expressly agrees to accept the performance of the delegatee (the new third party performer) instead of the delegator (the original party owing performance)
(2) releases the delegator from liability.
(3) novation terminates the liability of the delegator.

44
Q

Anticipatory Repudiation

A

(1) Unequivocal expression
(2) that a party to K won’t perform
(3) Before said parties performance is due

45
Q

Non-breaching parties rights under Anticipatory Repudication

A

Nonrepudiating party can
◆ Sue immediately and treat as material breah
◆ Suspend performance
◆ Treat K as discharged
◆ Urge performance

46
Q

Right to demand adequate assurance

A

Right to demand adequate assurances
◆ Reasonable grounds for insecurity
◆ In writing
◆ Okay to suspend perfor mance pending assurances

47
Q

Material vs. Minor Breach (CL)

A

(1) did party receive substantial benefit?
(2) Extent of part performance
(3) Willfulness of breach
(4) Time not of essence unless contracted for

Divisible contract (separate K’s)
Breach of a divisible contract: For purposes of breach, each agreed equivalent operates as a separate contract.

48
Q

UCC Breach

A

UCC has perfect tender rule. If products fail to conform in any respect buyer can
(1) accept whole (2) reject whole (3) accept specific unit

Perfect tender rule does not apply to installment contracts, right to reject is based on substantial conformity

49
Q

Installment contracts VS the “perfect tender

A

installment contracts: The “perfect tender” rule does not apply to installment contracts where the parties have contracted for more than one delivery (here the right to reject is determined by “substantial conformity” and whether the nonperfect tender substan tially affects the contract; buyer cannot reject if seller can cure).

50
Q

Seller’s right to cure

A

Seller’s right to cure: The buyer’s right to reject nonconforming goods is subject to the seller’s right to cure the defect. A seller may cure the defect any time before performance is due, with the follow ing provisions:
(1) Notice: The seller must give notice to the buyer; and
(2) New tender: The seller must make a new tender within the time for performance. The seller may even make a new tender after the time for performance if the seller has a reasonable belief this would be acceptable to the buyer.

51
Q

Minor Breach Duties

A

Minor breach: If a breach is not material, it is a minor breach and the nonbreaching party may recover damages but must still perform.

52
Q

Types of Warranties (Contract)

A

Warranties: There are several contract warranties that may be violated.
(1). Express: An express warranty is made explicitly.
(2). Implied warranty of merchantability warrants that goods will be fit for the ordinary purpose for which such goods are used. (Warranty can be disclaimed — i.e., goods sold “as is.”)
(3). Warranty of fitness for a particular purpose only applies where the buyer relies on the seller’s judgment to select appropriate goods for a stated purpose. (Warranty can be disclaimed but only if in writing and conspicuous).
(4). Implied covenant of good faith and fair dealing is inherent in every contract.

53
Q

Accord & Satisfaction

A

Accord: An accord is an agreement where one party promises to render substitute performance and the other promises to accept that substitute in discharge of the existing duty. It does not discharge the obligation under the original agreement until the substitute performance has been completed (a satisfaction). Consideration is required.

Satisfaction: A satisfaction is the performance of the accord, which then discharges both the original agreement and the accord. If the accord is breached the other party can sue on the original contract or the accord.

54
Q

Expectation Damages (CL)

A

Expectation damages compensate a plaintiff for the value of the benefit of the bargain the plaintiff expected to receive from the contract. Expectation damages put the plaintiff in the posi tion he would have been in if the contract was performed.

Real Esstate: ED = Contract Price - Market Price. Abatement: Where the property measures less than the con tract indicates, the court can abate the price commensurate with the actual property

Services: This would be calculated by the cost of substitute performance

55
Q

UCC Expecation Damages Formulas - Buyers UCC Damages

A

Buyer must give seller NOTICE, unless loses the right to sue
(1) seller has goods and seller in breach
Buyer covers
Damages = cover price - contract price
Buyer doesnt cover
Damages = market price - contract price
Can also recover consequental damages

(2) buyer has goods and seller in breach
Damages = Value of perfect goods - values as tendered
*applies to warranty damages

Note that the buyer’s damages are measured as of the time they learn of the breach, while the seller’s damages are measured as of the time for delivery

56
Q

UCC Expecation Damages Formulas - Sellers UCC Damages

A

(1) seller has goods and buyer in breach
Seller Resell
Damages = Contract price - resale price
Seller did not resell
Damages = Contract price - market price
Lose volume seller
Damages = lost profit

(2) buyer has goods and buyer in breach: The measure of damages is the full contract price.

Note that the seller’s damages are measured as of the time for delivery, while the buyer’s damages are measured as of the time they learn of the breach.

57
Q

Types of Conditions (Contract)

A

(1) Condition Precedent = condition must occur before performance is due
(2) Condition concurrent - conditions to occur at the same time
(3) Conditions subsequent - condition cuts off already existing duty
(4) Construtcive condition - implied - can be conditions conucrrent or condutions precedent

58
Q

Assignment for Value vs Gratuitous

A

Assignment for Value
An assignment is for value if it is: (1) done for consideration, or (2) taken as security for or payment of a preexisting debt. Assignments for value cannot be revoked.

Gratuitous Assignments
An assignment not for value (a gratuitous assignment) generally is revocable

This is where the obligor’s peril comes in. The obligor does not necessarily know whether an assignment was gratuitous or for value. Suppose the obligor, after notice of the assignment, renders performance to or pays the assignor. If the assignment was revocable, it is revoked by the assignor’s acceptance, and the obligor is discharged. If, however, the assignment was for value, the obligor is not discharged by his performance or payment to the assignor. The obligor remains liable to the assignee.