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Contracts Flashcards

1
Q

Under SOF for sale of goods, must price be included in a K?

A

No,
1. parties may present evidence of agreed upon price or
2. market price

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2
Q

creditor beneficiary

A

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

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3
Q

delegation

A

transfer of duties and obligations under a K

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4
Q

If the offeree sends an acceptance and later sends a communication rejecting the offer then

A

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.

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5
Q

Mailbox Rule

A

An acceptance of an offeror is valid when it is SENT

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6
Q

Entering into K w/a minor

A

K is VOIDABLE at the option of the minor

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7
Q

K with someone with mental illness

A

K is VOID

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8
Q

duress

A

wrongful threat

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9
Q

undue influence

A

unfair/excessive persuasion by someone who dominates or holds a special relationship of trust and confidence with the assenting party

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10
Q

unconscionability

A

RESULT itself will be unfair (e.g., unfair surprise)

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11
Q

Unilateral Mistake

Civ Pro

A

is not a defense unless:
1. the other party knew of the mistake or
2. if there is a clerical error

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12
Q

Remedy for mutual mistake

A

rescission bc no “meeting of the minds”

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13
Q

SOF is satisfied by

A

complete performance or in writing

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14
Q

part performance exception that takes out Ks outside the realm of SOF

A

Show 2 of 3:
1. some payment,
2. possession of land,
3. valuable improvements

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15
Q

Surety/Guarantor SOF Exception

A

look to main purpose/motive, if, self-serving, K does not need to be in writing

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16
Q

Executor Ks

A

SOF

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17
Q

SOF requirements

A
  1. parties
  2. subject matter
  3. material terms
  4. signed by party to be charged
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18
Q

Sale of Goods of $500+ SOF Exception

A
  1. Partial performance will take K out of SOF
  2. Merchant Confirmation: confirmation signed by the sender including P –> no written objection w/in 10 days = acceptance by buyer
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19
Q

Tortious interference with a K

A
  1. valid K existed bw π and 3P
  2. ∆ knew of that K-ual rel’ship
  3. ∆ intentionally & improperly interfered w/the K’s performance &
  4. the interference caused π pecuniary loss
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20
Q

Up to when can a minor disaffirm/void a K

A

Before the individual reaches age of majority or w/in a reasonable time after

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21
Q

Minors & Necessities rule

A

A person who supplies a minor w/necessities pursuant to a K may recover the reasonable value of the necessities under quasi-K theory

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22
Q

Misunderstanding of a K

A

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

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23
Q

May a party who benefits from the condition waive the condition of a K?

A

Yes, by words or conduct

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24
Q

Evidence that ∆ complied with or deviated from industry custom is

A

Relevant but not conclusive (i.e., no MSJ) on the issue of negligence

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25
If a party stipulates unilateral right to cancel order, is there consideration?
No consideration until performance
26
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
27
Revocation of a general offer is only effective if
revocation is as publicized as the offer
28
parol evidence rule exception: which evidence can always be used to explain/supplement terms
1. course of performance 2. course of dealing 3. 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)
29
offer will terminate automatically upon
1. death of the offeror OR 2. permanent mental incapacity of the offeror
30
shipment Ks risk
seller bears risk until delivery to carrier FOB (free on board): seller's place of business
31
destination Ks risk
seller bears risk until goods are delivered to the buyer FOB (free on board): buyer's place of business
32
if specifically identified goods are destroyed,
then excuses both parties' duty to perform as long as destruction occurred 1. w/o fault of either party AND 2. BEFORE the risk of loss passed to the buyer
33
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
34
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
35
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)
36
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,)
37
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
38
advertisement = a valid general offer if
1. specifies subject matter, Q, and P and 2. places reasonable limit on who can accept the offer
39
void Ks
1. forgery 2. illegality 3. fraud in the factum (assent by trick) 4. duress by physical compulsion
40
voidable Ks
1. lack of capacity 2. mistake 3. misrepresentation 4. duress by threat 5. undue influence 6. fraud in the inducement
41
Can specific performance be a remedy for a breach of duty to perform personal services (e.g., contractor)
No, would be akin to slavery
42
specific performance is available as a remedy in cases of anticipatory repudiation. T/F
T
43
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
44
when does doctrine of promissory estoppel kick in?
BEFORE acceptance
45
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
46
unilateral termination clauses
illusory promise bc it imposes no obligation on the other party, so no consideration
47
Bilateral Ks can be assigned in their entirety?
Yes, assignments of bilateral Ks can assign rights and delegate duties
48
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
49
merchant seller bears risk of loss UNTIL
merchant seller delivers the good to the buyer until the buyer takes possession
50
nonmerchant seller bears risk of loss UNTIL
goods are TENDERED to buyer (i.e., make the goods available to the buyer)
51
shipment K (default rule)
once goods reach carrier, risk shifts to buyer
52
destination K
risk of loss to seller until goods are delivered to the destination
53
FOB seller
shipment K
54
FOB anything else
destination K
55
modification for services requires
consideration
56
modifications may be ORAL or written. T/F
True but under UCC clauses prohibiting oral modifications are valid
57
under UCC, are clauses prohibiting oral modifications valid?
Yes
58
condition precedent/concurrent/subsequent depends on
when the event occurs w/r/t at time of performance
59
conditions are excused when
1. waiver 2. bad faith 3. avoiding forfeiture - if party would suffer a GREAT LOSS then cond'n will be excused (and performance of K must persist)
60
default: Time is/not of the essence
Time is NOT of the essence unless stated in K
61
for nonconforming goods, buyer may
1. reject 2. accept (buyer will have to pay the price of the K) 3. reject in part & accept in part
62
seller's right to cure if: "accomodation"
1. seller had reasonable grounds to believe the goods would be acceptable AND 2. by notice and new tender w/in time of performance
63
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
64
price fluctuations if not severe
it is foreseeable and K is not impracticable
65
impossibility
1. no one can perform 2. performance is illegal
66
a temporary impossibility
is not a valid discharge
67
FORESEEABLE?
not impracticable or impossible
68
frustration of purpose
the core reason for K is no longer present can be discharged from performance
69
UCC rule for demand assurances
must be in writing reasonable amt of time to respond = 30 days
70
if one party demands assurances, then
other party must respond in a REASONABLE AMT of TIME

MBE Review (8 decks)

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