contracts Flashcards
quasi contracts
not a contacts at all; but constructed to avoid unjust enrichment by permitting plantiff to bring an action in restitution to recover amount conferred when defendant had a chance to decline and failed to do so without reasonable excuse
- benefit conferred
- appreciation by defendant
- acceptance and retention would be inequitable without payment
consideration
- to constitute consideration, a performance or a return promise must be bargained for
- a performance or return promise is considered bargained for when the promisor seeks it in exchange for their promise, and the promisee (other party) provides it in return for that promise.
the performance may consist of
- an act other than a promise or
- a forbearance or
- creation, modification or destruction of a legal relation
- the performance or return promise may be given to the promisor or to some other person; it may be given by some other person.
implied in fact
mutual agreement and manifested intent to promise but the agreement and promise have not been made in words; but are implied from the facts through:
- conduct
- context
- circumstances
not consideration
- past consideration
- gifts
- illusionary promises (unenforceable due to indefinetness or lack of mutuality where only one side is bound to perform)
remedies
expectance; courts will give you the benefit of your bargain by awarding damages that puts you where you expected to be if contract were fulfilled (island of expectation)
reliance; the courts have interest in being reimbursed for loss cause by the reliance on the contract by awarding you damages that put you in as good as a position as if the contract was never made. (i wish i never met the bastard)
restitution; the interest in having restored to them any benefit that they conferred to other party
forseeability (restatement 351)
damages are not recoverable if they are not forseeable as a probable result of the breach at the time contract was made (expectation cases)
FPB: it is determined to be forseeable as probable result of breach in order to recover damages if:
- it is in the ordinary course of events
- special circumstances, it was communicated explicitly
promissory estoppel
can serve as a substitute for consideration when it is a promise which the promisor reasonable should expect to induce action of forebearence of a definite and substantial character on the part of the promise and which does induce such action or forebearence is binding if injustice can be avoided once enforcement of the promise
anticipatory repudiation
one party repudiates the contract before the time of performance, the other party is not required to wait until the contract performance date to sue if:
- theres an unequivocal declaration of the deal is off
- there no general duty on the victim to mitigate; but they must if want damages (make reasonable attempt to avoid loss without undue risk, burden or humiliation)
defensive remedy to anticipatory breach
one parties’ repudiation discharges the other person of their contractual duties
uncousionable
if a contract is found to be uncousionable at the time it was made, the court may refuse to enforce contract in its entirety or just the one clause
Restatement 208:
- but gross bargaining party, in combination with one sided terms may constitute unconscionable**
expressed contract
formed by language, oral or written
nullification of anticipatory repudiation
party may retract unequivocal declaration to end contract and restore contract if non breaching party:
- has not materially changed his position in reliance OR
- indicated to breaching party that their unequivocal declaration was final
impractability
parties may get out of contract if performance is deemed to be impractable bc of extreme and unreasonable difficulty; extreme injury, act of God, war or any unforseen shutdown
contract
agreement between parties establishing enforceable obligations
promise
manifestation of intention to act or refrain from acting in a specified way so as to justify a committment has been made
