Contracts Flashcards
Under SOF for sale of goods, must price be included in a K?
No,
1. parties may present evidence of agreed upon price or
2. market price
creditor beneficiary
If a performance of a promise would satisfy an actual, supposed, or asserted DUTY of the promisee to a 3P and the promisee did not intend to make a gift to the 3P; the 3P is a creditor beneficiary
delegation
transfer of duties and obligations under a K
If the offeree sends an acceptance and later sends a communication rejecting the offer then
the acceptance will generally control even if the offeror receives the rejection first (i.e. mailbox rule)
If, however, the offeror receives the rejection first and detrimentally relies on the rejection, then the offeree will be estopped from enforcing the K.
Mailbox Rule
An acceptance of an offeror is valid when it is SENT
Entering into K w/a minor
K is VOIDABLE at the option of the minor
K with someone with mental illness
K is VOID
duress
wrongful threat
undue influence
unfair/excessive persuasion by someone who dominates or holds a special relationship of trust and confidence with the assenting party
unconscionability
RESULT itself will be unfair (e.g., unfair surprise)
Unilateral Mistake
Civ Pro
is not a defense unless:
1. the other party knew of the mistake or
2. if there is a clerical error
Remedy for mutual mistake
rescission bc no “meeting of the minds”
SOF is satisfied by
complete performance or in writing
part performance exception that takes out Ks outside the realm of SOF
Show 2 of 3:
1. some payment,
2. possession of land,
3. valuable improvements
Surety/Guarantor SOF Exception
look to main purpose/motive, if, self-serving, K does not need to be in writing
Executor Ks
SOF
SOF requirements
- parties
- subject matter
- material terms
- signed by party to be charged
Sale of Goods of $500+ SOF Exception
- Partial performance will take K out of SOF
- Merchant Confirmation: confirmation signed by the sender including P –> no written objection w/in 10 days = acceptance by buyer
Tortious interference with a K
- valid K existed bw π and 3P
- ∆ knew of that K-ual rel’ship
- ∆ intentionally & improperly interfered w/the K’s performance &
- the interference caused π pecuniary loss
Up to when can a minor disaffirm/void a K
Before the individual reaches age of majority or w/in a reasonable time after
Minors & Necessities rule
A person who supplies a minor w/necessities pursuant to a K may recover the reasonable value of the necessities under quasi-K theory
Misunderstanding of a K
When contracting parties attach different meanings to the same material term
When there is a misunderstanding about a material term, valid contract is not formed
May a party who benefits from the condition waive the condition of a K?
Yes, by words or conduct
Evidence that ∆ complied with or deviated from industry custom is
Relevant but not conclusive (i.e., no MSJ) on the issue of negligence
If a party stipulates unilateral right to cancel order, is there consideration?
No consideration until performance
In order to sue for breach of warranty, standing
π must establish privity with the ∆
Privity extends to:
1. Purchaser,
2. Members of Purchaser’s Family/Household
Revocation of a general offer is only effective if
revocation is as publicized as the offer
parol evidence rule exception: which evidence can always be used to explain/supplement terms
- course of performance
- course of dealing
- trade usage
BUT cannot be offered to contradict a term in the final written agmt UNLESS unconscionable (e.g., unfair surprise from what was discussed and what was on the K)
offer will terminate automatically upon
- death of the offeror OR
- permanent mental incapacity of the offeror
shipment Ks risk
seller bears risk until delivery to carrier
FOB (free on board): seller’s place of business
destination Ks risk
seller bears risk until goods are delivered to the buyer
FOB (free on board): buyer’s place of business
if specifically identified goods are destroyed,
then excuses both parties’ duty to perform as long as destruction occurred
- w/o fault of either party AND
- BEFORE the risk of loss passed to the buyer
Must parties follow conditions to an agreement in order for an intended beneficiary to benefit?
Yes.
When 3P beneficiary sues a promisor, the promisor can raise any defense against the beneficiary as it would against the original promisee
When only one of the parties is mistaken as to an essential element of the K
either party can generally enforce the K
unless mistaken party did not bear the risk of mistake
doctrine of frustration of purpose
when UNEXPECTED events arise that destroy one party’s basic assumption of the K (i.e., not w/in the assumed risks inherent under the K)
only what kind of sellers can recover the expected profit of a sale
volume sellers (i.e., sellers who have an unlimited supply of the goods and who make a profit per ite,)
if a seller could foresee risk of failure to make contractual provision, but performance becomes impossible under doctrine of impossibility, is the seller liable?
Yes, seller assumed the risk
advertisement = a valid general offer if
- specifies subject matter, Q, and P and
- places reasonable limit on who can accept the offer
void Ks
- forgery
- illegality
- fraud in the factum (assent by trick)
- duress by physical compulsion
voidable Ks
- lack of capacity
- mistake
- misrepresentation
- duress by threat
- undue influence
- fraud in the inducement
Can specific performance be a remedy for a breach of duty to perform personal services (e.g., contractor)
No, would be akin to slavery
specific performance is available as a remedy in cases of anticipatory repudiation. T/F
T
specific performance is not available as a remedy where even nominal damages could have been recovered. T/F
F. Nominal damages alone are NOT adequate remedy
when does doctrine of promissory estoppel kick in?
BEFORE acceptance
construction K damages
nonbreaching party may recover compensatory damages that would place the party in the same position as if the K had been perform
unilateral termination clauses
illusory promise bc it imposes no obligation on the other party, so no consideration
Bilateral Ks can be assigned in their entirety?
Yes, assignments of bilateral Ks can assign rights and delegate duties
If debt is liquidated (i.e., certain & undisputed in amt),
it cannot be satisfied by a check for a lesser amount
Even if they accept the check
merchant seller bears risk of loss UNTIL
merchant seller delivers the good to the buyer until the buyer takes possession
nonmerchant seller bears risk of loss UNTIL
goods are TENDERED to buyer (i.e., make the goods available to the buyer)
shipment K (default rule)
once goods reach carrier, risk shifts to buyer
destination K
risk of loss to seller until goods are delivered to the destination
FOB seller
shipment K
FOB anything else
destination K
modification for services requires
consideration
modifications may be ORAL or written. T/F
True
but under UCC clauses prohibiting oral modifications are valid
under UCC, are clauses prohibiting oral modifications valid?
Yes
condition precedent/concurrent/subsequent depends on
when the event occurs w/r/t at time of performance
conditions are excused when
- waiver
- bad faith
- avoiding forfeiture - if party would suffer a GREAT LOSS then cond’n will be excused (and performance of K must persist)
default: Time is/not of the essence
Time is NOT of the essence unless stated in K
for nonconforming goods, buyer may
- reject
- accept (buyer will have to pay the price of the K)
- reject in part & accept in part
seller’s right to cure if:
“accomodation”
- seller had reasonable grounds to believe the goods would be acceptable AND
- by notice and new tender w/in time of performance
nonconforming installment of an installment K
1 defective shipment is not material breach if:
1. seller can cure, then buyer must give seller opportunity to cure
2. seller cannot cure, then buyer can reject that installment
UNLESS that one shipment becomes worthless if not delivered
price fluctuations if not severe
it is foreseeable and K is not impracticable
impossibility
- no one can perform
- performance is illegal
a temporary impossibility
is not a valid discharge
FORESEEABLE?
not impracticable or impossible
frustration of purpose
the core reason for K is no longer present
can be discharged from performance
UCC rule for demand assurances
must be in writing
reasonable amt of time to respond = 30 days
if one party demands assurances, then
other party must respond in a REASONABLE AMT of TIME
