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The Things That I Got Wrong > Contracts > Flashcards

Contracts Flashcards

1
Q

When an offer cannot be withdrawn?

A

Generally, unless consideration is given to keep an offer open, the offeror can withdraw an offer at any time prior to its acceptance by the offeree, even an offer that the offeror states is irrevocable.

However, a firm offer made by the offeror in a signed writing is irrevocable for the stated time period, where such period is three months or less, provided that the offeror is a merchant.

For purposes of this rule, a merchant includes not only a person who regularly deals in the type of goods involved in the transaction or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction, but also any businessperson when the transaction is of a commercial nature.

the firm offer rule applies to any sale of goods by a merchant, regardless of whether the buyer is or is not a merchant

a firm offer, may be subject to a condition.

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2
Q

SOF service contract

A

A contract that cannot be performed within one year from its making because of the constraints of the terms of the agreement falls within the Statute of Frauds and is unenforceable unless made in writing.

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3
Q

Economic Waste concept in a breach of contract action

A

When breach of a construction contract results in a defective or unfinished construction, if the award of damages based on the cost to fix or complete the construction would result in economic waste, then a court has the discretion to award damages equal to the diminution in the market price of the property caused by the breach.

Economic waste occurs when the cost to fix or complete the construction is clearly disproportional to any economic benefit or utility gained as a result.

However, if the breach is willful, and only completion of the contract will give the nonbreaching party the benefit of its bargain, then a court may award damages based on the cost to fix or complete the construction, even if that award would result in economic waste.

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4
Q

Seller’s acceptance of buyer’s offer

A
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5
Q

Essential Contract Terms

A
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6
Q

Undue Influence

A
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7
Q

Implied -in-fact contract

A
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8
Q

The Parol Evidence rule

A
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9
Q

When can court reform a written contract

A
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10
Q

Bilateral v. Unilateral Contracts

A
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11
Q

Mutual mistake contracts are voidable when

A
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12
Q

Irrevocable Offers

A
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13
Q

When disclosure is required to avoid misrepresentation

A
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14
Q

Contract modification

A
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15
Q

Elements of valuable consideration

A
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16
Q

What is the timeline and procedure to demand assurances

A
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17
Q

Who has priority to the assigned benefits under a contract as a third party

A
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18
Q

When will a check satisfy unpaid debt

A
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19
Q

Different types of beneficiaries

A

In general, an intended beneficiary is one to whom the promise of the performance will satisfy the obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the benefit of the promised performance. An intended beneficiary has a right to enforce the contract against the promisor.

Donee beneficiary

If the promisee entered the contract for the purpose of conferring a gift on a third party, then the third-party intended beneficiary is given the right to sue the promisor.

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20
Q

What is a valid offer

A

A statement is an offer only if the person to whom it is communicated could reasonably interpret it as an offer. It must express the present intent of a person to be legally bound to a contract. The primary test of whether a communication is an offer is whether an individual receiving the communication would believe that he could enter into an enforceable deal by satisfying the condition.

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21
Q

Is it a valid acceptance if the offeree knew the subjective intent of the offeror is to not sell

A

Although in contract law, intent is generally determined by an objective standard and not by the subjective intent or belief of a party, when an offeree is aware of the other’s party’s subjective intent not to enter into a contract, the offeree’s agreement to enter into a contract does not constitute a valid acceptance.

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22
Q

Refrain from groundless civil action is sufficient consideration?

A

An agreement to refrain from pursuing a civil action that would have been groundless is insufficient consideration to support a settlement agreement.

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22
Q

Infancy contract voidable?

A

When a contract is made by an infant, it is voidable by the infant but not by the other party. This means that the infant may either disaffirm (void) the contract and avoid any liability under it or choose to hold the adult party to the contract. The disaffirmance must be effectuated either before the infant reaches the age of majority or within a reasonable time thereafter.

Although an individual who disaffirms a contract because of infancy is required to restore any benefits received under the contract if possible, an individual who is unable to do so may nevertheless disaffirm the contract, even though the inability to do so is due to the individual’s own carelessness.

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23
Q

SOF exceptions

A

the Statute of Frauds does not apply to a contract where the goods have been received and accepted.

full performance by either party to the contract will generally take the contract out of the Statute of Fraud under the one-year rule.

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24
Q

Incapacity of contract

A

An individual who is the subject of a court-ordered guardianship over that individual’s property lacks the capacity to enter into a contract. Consequently, any contract purportedly entered into by such an individual is void.

void rather than merely voidable

where a guardianship over an individual’s property has been recognized by a court, the seller’s lack of actual knowledge of the guardianship or the individual’s inability to contract is irrelevant.

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25
Q

Delivery of the goods who bears the risk of loss

A

the delivery of the goods by the seller to the buyer pursuant to a contract generally shifts the risk of loss to the buyer

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26
Q

How to waive contract condition

A

A party whose duty under a contract is subject to a condition can waive the condition, either by words or by conduct. A party who chooses to continue with a contract after a condition is not satisfied effectively elects to waive that condition.

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27
Q

The defense of impracticability is available if

A

(i) an unforeseen event occurs; (ii) the nonoccurrence of which was a basic assumption on which the contract was based; and (iii) the party seeking discharge is not at fault.

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27
Q

When can a price term be supplied

A

Under the UCC a court can find that a contract for the sale of goods was formed if (1) the parties intended to contract, and (2) there is an objective standard to fill in any missing term. Typically, in the sale of goods, quantity is the key term that must be specified. As long as the parties intend to create a contract, the UCC “fills the gap” if other terms, such as the time or place for delivery, or even the price of the goods, are missing.

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28
Q

Battle of the forms rule

A
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29
Q

Factors considered to determine material breach

A
30
Q

When party assumes risk of mistake

A
31
Q

Mailbox rule when rejection is sent first and then acceptance

A

Depends on which one is received first

32
Q

Can warranty of fitness for a particular purpose be disclaimed?

A

Yes

33
Q

Modifications to a contract does not need to be in writing unless

A

It brings a no SOF contract to a SOF contract

34
Q

Will untimely assurance make the contract voidable

A

Yes, but not if the buyer still wants to proceed

35
Q

An accomdation/noncomforming goods

A

Serves as a rejection and counter offer if said explicitly.

36
Q

Impracticality assumption of risk

A

The person who know it might happen assumes the risk

37
Q

When will a promise to make a gift be enforceable

A

although a promise to make a gift is generally unenforceable for lack of consideration absent detrimental reliance on the promise by the promisee, here the exchange of such promises constituted valid consideration.

38
Q

Does UCC provide for attorney’s fees

A

No they are not recoverable in the absence of a contract provision allowing them

39
Q

Modification requirement for construction contract

A

No writing needed if can be completed in an year

40
Q

Seller’s response to buyer’s offer

A
41
Q

Assignment of contract

A

An assignee takes all of the rights of the assignor as the contract stands at the time of the assignment. However, the assignee takes those rights subject to any defenses that could be raised against the assignor. Payment by the obligor to the assignor can be raised as a defense, provided the payment was made before the obligor had notice of the assignment.

even an assignment in breach of a contract can be enforced by the assignee subject to any defenses the obligor would have had against the assignor

42
Q

Delegation is release of liability?

A

When obligations are delegated, the delegator is not released from liability, and recovery can be had against the delegator if the delegatee does not perform, unless the other party to the contract agrees to release that party and substitute a new one (i.e., forms a novation).

43
Q

Timing to object to an acceptance letter

A

If both parties are merchants and a memorandum sufficient against one party is sent to the other party, who has reason to know its contents, and the receiving party does not object in writing within 10 days, then the contract is enforceable against the receiving party even though he has not signed it.

44
Q

Can repudiation be retracted?

A

Repudiation may be retracted so long as the other party has not canceled the contract or materially changed position.

45
Q

How can a novation be implied

A

A novation may be express or implied after delegation if (i) the original obligor repudiates liability to the original promisee and (ii) the obligee subsequently accepts performance of the original agreement from the delagatee without reserving rights against the obligor.

46
Q

SOF exceptions

A

The UCC Statute of Frauds generally requires a writing when there is a contract for the sale of goods with a value of $500 or more. However, a writing is not required if (i) the goods are to be specially manufactured for the buyer, (ii) the goods are not suitable for sale to others in the seller’s ordinary course of business, and (iii) the seller has made “either a substantial beginning of their manufacture or commitments for their procurement.”

47
Q

Non rewrittable contract

A

Generally, a written contract may be reformed to correct a mistake and thereby reflect the parties’ agreement. However, when there is a mistake as to the quantity term in a signed writing that would otherwise satisfy the Statute of Frauds, the contract is enforceable only to the extent of the quantity actually stated in the writing. T

48
Q

Nonconforming order after the time elapses?

A

Although the perfect tender rule generally applies to a sale of goods, the seller has a right to cure a defective tender—even after the time for performance under the contract has elapsed—if the seller had reasonable grounds to believe that the buyer would accept the goods despite the nonconformity. In curing the defect, the seller must notify the buyer of its intent to do so and effect the cure within a reasonable time.

49
Q

Order of performances

A
50
Q

UCC Gap fillers

A
51
Q

Effective revocation

A

a revocation of an offer is only effective if the offeree has received the revocation.

52
Q

As between merchants, an additional term contained in the acceptance is automatically included ?

A

is automatically included in the contract unless the offer expressly limits acceptance to the terms of the offer, the offeror has already objected to the additional terms or does so within a reasonable time, or the term materially alters the original contract. A term that results in surprise or hardship if incorporated without the express awareness by the other party materially alters the original contract. Terms that usually do not materially alter the contract include reasonably limiting remedies.

53
Q

auction

A

In the absence of language to the contrary, the auction of an item is with reserve, and the items may be withdrawn from sale any time before the completion of the sale is announced.

54
Q

A threat to breach a contract is duress?

A

A threat to breach a contract can, but does not necessarily, constitute duress. Such a threat constitutes duress when it breaches the duty of good faith and fair dealing.

55
Q

revocable assignment

A

no consideration

56
Q

SOF marriage

A

it is subject to the Statute of Frauds. The Statute of Frauds applies to this promise because the act of marriage was consideration for the promise.

57
Q

Installment contract recovery right

A

Where a party to a contract breaches the contract and the only remaining duty with respect to the contract is the payment of money in installments, this breach does not give the other party a claim to damages for total breach.

58
Q

No oral modification clause

A
59
Q

Revocable advertisement

A
60
Q

Identification of future goods to contract

A
61
Q

Misrepresentation needs to be intentional or fraudulent?

A

No as long as it is material

62
Q

Gap fillers common law

A

Non essential terms reasonable under the circumstances for both parties.

63
Q

The principle of reasonable expectations

A
63
Q

Divisible contracts

A
64
Q

The duty of good faith

A
65
Q

Damages for substantial performance v. material breach

A
66
Q

Can you cure a fraudulent misrepresentation?

A

A fraudulent misrepresentation need not be material, and may make the contract voidable at the adversely affected party’s option. However, the contract is no longer voidable if, following a misrepresentation but before the deceived party has avoided the contract, the facts are cured so as to be in accord with the facts that were previously misrepresented.

67
Q

No assumption of risk applied in

A

antique goods

68
Q

How can an intended beneficiary sue for breach of contract

A

If the promisee tells the intended beneficiary about the contract and should reasonably foresee reliance, and the beneficiary does so rely to his detriment, then the intended beneficiary may sue the promisee for his breach of the contract.

69
Q

Exceptions to preexisting duty rule

A
69
Q

Express agreement trumps course of dealing?

A

Yes

70
Q

Attempt’s actus reus

A
71
Q

Third party beneficiary contract enforcement

A
72
Q

Exceptions to mail box rule

A
73
Q

Contracts unenforceable on public policy grounds can still be enforced if

A

The Things That I Got Wrong (7 decks)

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