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Contracts > Contracts > Flashcards

Contracts Flashcards

1
Q

What is consideration?

A

Consideration is something that is bargained/exchanged/traded/bartered for.

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2
Q

What is forbearance?

A

Forbearance is the intentional action of abstaining from doing something.

Examples of forbearance include delaying enforcement of a right, obligation, or debt (e.g., a creditor may forbear legal action against the debtor if they settle the debt payment with new payment).

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3
Q

Can forbearance be consideration?

A

Anything that is bargained for can be consideration, therefore forbearance of a right can be consideration.

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4
Q

What is a gratuitous promise?

A

A gratuitous promise is any promise made without receipt of consideration from the recipient.

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5
Q

What is an illusory promise?

A

An illusory promise is a promise that does not actual bind the promisor and thus an illusory promise cannot be used as consideration.

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6
Q

Are promises made out of Moral Obligation enforceable without receiving consideration?

A

Generally these promises are only enforced after a life or death situation that the recipient has acknowledged and they are only enforceable to the extent necessary to prevent injustice.

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7
Q

What is a bilateral contract?

A

Giving a promise in exchange for a promise (e.g., “I promise to pay you $20 if you mow my lawn tomorrow.”)

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8
Q

What is a unilateral contract?

A

Promise in exchange for performance (e.g., “I’ll pay $20 to whoever mows my lawn.”)

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9
Q

What are the elements of promissory estoppel?

A
  1. Promise reasonably expected to induce reliance.
  2. Promisee actually relies on promise.
  3. Injustice can only be avoided by enforcing the promise.
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10
Q

What kind of damages are received for breach of contract?

A

Expectancy Damages

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11
Q

What kind of damages are received for promissory estoppel?

A

Reliance Damages

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12
Q

What kind of damages are received for unjust enrichment?

A

Restitution Damages

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13
Q

What are the elements of unjust enrichment?

A
  1. Was party enriched?
  2. Would retention of benefit be unjust?
  3. Would party receiving benefit have asked for it if they could have?*

*We don’t reward officious intermeddlers.

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14
Q

What is an officious intermeddler?

A

A person who confers a benefit on another without request or without a legal obligation, and is therefore not entitled to compensation from the recipient.

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15
Q

What is Capacity?

A

The ability to enter into a contract.

A lack of capacity can be used to void a contract.

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16
Q

What groups lack capacity?

A

Children

The Intoxicated

The Mentally Disabled

Historically, married women

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17
Q

What is Infancy Doctrine?

A

Minors may void a contract even after having been conferred the benefit of the bargain by invoking the Infancy Doctrine unless it pertains to necessaries.

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18
Q

What are necessaries?

A

Food, shelter, medicine, and in some cases, education, are examples of necessaries that minors cannot void the contract for.

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19
Q

What is Duress?

A

Duress can be used to void a contract if the free will of one of the parties is compromised by threats.*

Not limited to physical threats; it can be economic threats.

Duress can be used to void a contract.

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20
Q

What is Undue Influence?

A

Persuasion that is coercive in nature and which overcomes the will without convincing the judgment. Somewhat like a mix of lack of capacity and duress.

Undue Influence can be used to void a contract.

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21
Q

Concealment

A

Only applies if there is a duty to speak or you elect to speak and only tell a half-truth.

Concealment can be used to void a contract.

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22
Q

What is misrepresentation?

A

There is a duty to speak when something is patently wrong.

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23
Q

What is puffery?

A

Cannot amount to misrepresentation, but can clearly be a sales tactic (e.g., “World’s Best Coffee.”

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24
Q

What is a contract of adhesion?

A

A contract of adhesion is a contract which has no bargaining room; you take it or leave it.

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25
Q

Are contracts of adhesion enforceable?

A

Contracts of adhesion are generally enforceable unless they are unconscionable.

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26
Q

What is unconscionability?

A

Unconscionability occurs when there is ab absence of choice and unreasonable terms; it also frequently requires an “unexpected surprise”.

If there is no economic benefit to terms, then it is likely unconscionable.

Unconscionability can be used to void a contract.

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27
Q

How are Expectancy Damages calculated?

A

Loss in Value + Incidental Costs - Costs Avoided = Damages

28
Q

How are Reliance Damages calculated?

A

What it takes to put you back to where you started.

Only covers things you gave up in reliance of the promise, not things you would have gained as a result of the promise.

29
Q

How are Restitution Damages calculated?

A

You receive the value that was unjustly transferred.

30
Q

What are liquidated damages?

A

An estimation of the damages when it is difficult to estimate at the time of the contract’s formation.

31
Q

What is the test for determining if the liquidated damages valuation is proper?

A
  1. Damages in Contract are difficult to estimate at time of formation.
  2. Good faith effort to estimate
  3. Estimate turned out to be reasonable
32
Q

Can you use liquidated damages if the damages are easy to measure?

A

No, you would just use damages.

33
Q

What is Specific Performance?

A

A relief in equity that is usually only done when a monetary value would be impossible (e.g., valuing a family heirloom, a specific piece of real estate, or an animal).

34
Q

How are damages measured?

A

Only measure damages if there has been substantial performance.

Diminution in Value (how much less is the consideration received worth as a result of the breach) vs. Cost of Completion (how much would it cost to remedy the breach)

Look to nature and magnitude of damages to determine which method should be used for determination of damages.

35
Q

What is avoidability?

A

An injured party may not collect damages that could have been reasonably avoided (e.g., if a contract has been completely repudiated and you continue to work, you will not get damages for any costs after the contract was completely repudiated).

36
Q

What is foreseeability?

A

Damages must be foreseeable.

37
Q

What is certainty?

A

Damages must be reasonably certain (e.g., they cannot be vague, future damages).

38
Q

The Nature of Assent

A

We look at the intent of parties and their behavior to determine if they intended to be bound by the contract.

39
Q

What is an offer?

A

An offer requires specific term leaving nothing further open to interpretation and that these terms to be sufficiently detailed so as to be able to be responded to with a yes or no.

40
Q

Is a price tag an offer?

A

No, a price tag is a mere solicitation of an offer.

41
Q

What is Acceptance?

A

If all material terms are present, a yes or action will constitute acceptance*

*Means of acceptance is determined by offeror; if the offer is silent on means of acceptance, look to reasonable industry standard/reasonable standard.

42
Q

What is the mirror Image Rule?

A

Offer and acceptance must be identical.

43
Q

Last Shot Rule

A

If job is done, look to last communication–that is the offer.

Performance = Acceptance.

44
Q

Termination of Power to Accept

A

Offer lapses upon:

Revocation

Lapse (offer will lapse when it says it lapses or after a reasonable amount of time if it is silent)

Offeror’s death/incapacity

Offeree’s rejection

45
Q

Option Contracts

A

Require separate consideration.

You can use Promissory Estoppel to enforce Option Contracts (especially in the case of contractor-subcontractors).

46
Q

Accepting Unilateral Contracts

A

When you begin to perform unilateral contract, the other party is estopped from revoking.

47
Q

Pre-Contract Liability

A

If you hit on most minor aspects of a contract, you may accidentally bind yourself to a contract.

48
Q

If meaning of a contract is unclear, how do you interpret the contract?

A

Ambiguity is held against the drafter.

49
Q

What is the Parol Evidence Rule?

A

Parol evidence cannot be used to contradict the contradict unless you can show fraud, but it can be used to explain the meaning the contract.

If it is attempting to add additional items to the contract, it’s admissibility depends on if the contract is fully integrated.

If it is fully integrated, the contract cannot be added to.

If it is only partially integrated, it can be added to.

50
Q

What is a fully integrated contract?

A

A fully integrated contract contains the full and final embodiment of the parties’ deal.

51
Q

What is Definiteness?

A

Is the contract definite enough that you can reasonably interpret what it means?

52
Q

What does Statute of Frauds cover?

A

Contracts for (1) the transfer of real property; (2) for more than $500; (3) that require more than 1 year to perform; and (4) guarantors must be in writing.

53
Q

What to do when one party breaches?

A

We must look at remedies and conditions.

54
Q

What are Conditions?

A

Conditions provide an if-then element to contracts (e.g., if you do X, then I will do Y) that can be waived by the party benefiting from them.

Conditions can be express (written in the contract) or constructive (judge-made inferences) and determine how we approach what to do.

Constructive conditions don’t need to be perfect; they just require substantial performance.

55
Q

What happens if there is an independent condition?

A

Promises are unrelated to one another so you must perform and then sue for damages once done (e.g. you agree to pay $20 to Bob and Bob agrees to mow your lawn, you must still pay him even if he doesn’t mow your lawn, and then sue for damages arising from his failure to mow your lawn).

56
Q

What happens if there is a dependent condition?

A

Promises are related to one another so you are relieved of your duty if the contract is breached (e.g. you agree to pay $20 to Bob if he mows your lawn; he doesn’t mow your lawn so you don’t owe him $20).

57
Q

How to allocate risk in a contract?

A

Using “If” will allocate risk by making a promise condition.

Example:

I promise to do X = Unconditional (Independent Condition)

I promise to do X, if Y = Conditional (Dependent Condition)

Failing to use “If” keeps the risk.

58
Q

What is divisibility?

A

Divisibility is when you sever a contract into many small contracts when a party should be paid, but has not surpassed the threshold of substantial performance (e.g. instead of paying $100 for 100 logs, the contract is divided into a per-unit contract of $1/log).

59
Q

When do you suspend performance?

A

If the breach is material, you can continue (and sue) or suspend performance and be shielded.

If the breach is not material, you can continue (and sue), but if you call it quits, you’ll be sued.

60
Q

What is Anticipatory Repudiation?

A

A party has anticipatory repudiated when they evidence that they do not intend to fulfill and/or perform their promise.

61
Q

What is Mutual Mistake?

A

Mutual Mistake is when both parties misunderstood the terms of the contract and therefore the contract is voidable.

Only allowed at the time of the contract after agreement about either Impracticability of Performance or Frustration of Performance.

62
Q

What is Impracticability of Performance

A

This is when a contract is highly impracticable and cost deficient to accomplish. It doesn’t have to be impossible, but may as well be.

Usually requires acts of god.

63
Q

Frustration of Purpose

A

When the purpose of agreeing to the contract is no longer there (e.g., the benefit has gone way down or the cost has gone way up and we’re spending money that is a waste).

64
Q

What are Third Party Responsibilities?

A

You must intend the beneficiary and give them the right to sue for breach.

65
Q

What is Assignment & Assumption?

A

You can only get rid of promise if the other party allows it.

Contracts (1 decks)

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