Contracts 17 Flashcards
Options after material breach
For material breach, the non-breaching party:
- may treat the contract as at an end and
- will have an immediate right to all remedies for breach of the entire K, including total damages
What is an anticipatory repudiation?
This ONLY applies where there is a bilateral K with executory (unperformed) duties on both sides.
It occurs where a promisor, prior to the time set for performance of his promise, indicates that he will not perform when the time comes (must be unequivocal…more than mere hesitance)
What options does the nonrepudiating party have?
- can treat the anticipatory repudiation as a total repudiation and sue immediately;
- wait to sue until the performance date;
- treat the repudiation as an offer to rescind and treat the K as discharged;
- ignore the repudiation and urge other party to perform.
Can a repudiation be retracted?
Yes. A repudiation may be retracted until the nonrepudiating party has accepted the repudiation or detrimentally relied on it.
What is impracticability?
- extreme and unreasonable difficulty and/or expense; and
- this difficulty was not anticipated
Can a party recover for part performance before impracticability arose?
Yes. If part performance has been rendered by either party prior to the existence of the facts leading to impossibility or impracticability, that party will have a right to recover in quasi-contract at the contract rate or for the reasonable value of his performance, if that is a more convenient mode of valuation
What is an option contract?
An option is an irrevocable offer in effect for a specified period of time. The option must be supported by consideration, must specify a time within which the option may be exercised, and must identify with particularity the property and price to be paid
What is an irrevocable offer by a merchant?
Under Article 2, offers by a merchant are irrevocable for the stated period or for a reasonable time if no period is stated, if the offer is in writing with assurances that it will be held open.
What is the result of a mistake?
When both parties entering into a K are mistaken about facts relating to the agreement, the contract may be voidable by the adversely affected party if the mistake concerns a basic assumption on which the contract is made, the mistake has a material effect on the agreed upon exchange, and the party seeking avoidance did not assume the risk of the mistake.
Can a mistake as to the value of the subject matter be remedied?
Not usually. If the parties to a contract make assumptions as to the value of the subject matter, mistakes in those assumptions will generally not be remedied because both parties usually assume the risk that their assumption as to value is wrong.
What should a lawyer do if the client wants to do something criminal?
A lawyer must NOT counsel or assist a client in conduct that the lawyer knows or reasonably should know is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client in a good faith effort to determine the validity, scope, meaning, or application of the law.
When can a lawyer “break” confidential client communications?
A lawyer must reveal information to the extent the lawyer reasonably believes necessary to prevent a client from committing a crime or to prevent death or substantial bodily harm to another.
