Contracts Flashcards
What is entrustment (UCC)?
Under Art. 2/UCC, with entrustmentan owner who entrusts goods to a MERCHANT who deals in goods of the kind (e.g. a dealer) has NO rights against a bona fide puchaser (BFP) if the merchant wrongfully sells the good
When can K duties be delegated AND what are the rights of the obligee?
General rule: K duties MAY be delegated W/O consent of the person to whom performance is owed (the “obligee”) EXCEPTIONS: The K language cntrls (if delegation is prohibited, CANNOT delegate) If K prohibits assignment (this means NO delegation EITHER!) Special skill or reputation prevents delegation Rights of the obligee… Delegating party REMAINS liable to obligee (COMPARE w/ novation) A delegate WHO GETS CONSIDERATION is liable to the obligee (b/c this would make the obligee a 3d party beneficiary)
What is a 3d party beneficiary AND what rights does she have?
3PB arrises when TWO ppl enter into a K intending to benefit a 3d party A 3PB is NOT a party to the K, but has RIGHTS b/c the K intended to benefit her An intended beneficiary has legal rights, BUT an incidental beneficiary DOES NOT Two types of intended beneficiary: (i) creditor beneficiary = is getting benefit b/c a debt is owed to him; OR (ii) donee beneficiary (more likely) = performance is given as a gift Recission and modifictaion of a 3PB K General rule = the promisor and promisee (orig parties to K) CAN recind or modify the K UNTIL the rights of the 3PB have “vested” Vested means the intended beneficiary has (i) MANIFESTED ASSENT to the K; (ii) brought SUIT to enforce K; OR (iii) has RELIED on the K (i.e. you an AFFRIMATIVE act) Once the rights of the 3PB have “vested”, the original parties NEED the consent of the 3PB in order to modify/recind the K NOTE: contrary language in the K cntrls! Liability The intended beneficiary CAN sue the original promisor for breach of K (privity is not necessary) NOTE: if the promisor (of benefit to 3PB) has breached K and can’t enforce performance (against promisee), NEITHER can 3PB The original promisee is liable to a CREDITOR beneficiary (b/c the creditor is owed somethin); DONEE beneficiary has no rights against original promisee (Of course) the original promisor is liable to the original promisee (EVEN IF 3PB is a donee beneficiary)
What is anassignment?
Assignment = after two ppl make a K; LATER one (assignor) transfers his rights to a 3d party (assignee) The party who owes the duty to preform is the obligor The obligor is liable to the assignee, BUT ONLY IF (i) the assignor performs properly under K (no material breach); AND (ii) the obligor is AWARE of the assignment E.g. Batman Ks to provide security for Gotham for $200. Batman (assignor) assigns HIS RIGHT to pmt to Robin (assignee). NOW, Robin has the right to receive pmt from Gotham City (obligor) NOTE: w/ an assignment, two parties K and a 3d person shows up LATER; with a 3d party beneficary, the 3d party is PRESENT at time of K
What’s needed for a validassignment AND what are the restrictions on assignment?
1) Must have language of PRESENT transfer YES: “I assign…” NO: “I promise to assign…” 2) Consideration or a writingis NOT required Gift assignments are valid BUT easily revoked Oral assignments are valid 3) Restrictions on assignment K language cntrls BUT distingush b/t a cl that PROHIBITS assignment from that which INVALIDATES assignments EVEN IF assignments are prohibited (“Rights under this K are not assignable”), a VALID assignment can exist (i.e. the assignee can sue the obligor) If language states that assignments are INVALID (“All assignments under this K are void”), then any assignment is VOID Cannot SUBSTANTIALLY change duties of the obligor NOTE: you can basically always assign pmt b/c it’s easy enough
With multiple assignments, which assignee has rights? NOTE: NY Distinction
1) Gratuitous (“gift”) assignments are EASILY revoked by assignor (UNLESS there is detrimental reliance by the assignee from the obligor’s performance) The LAST gratuitous assignee PREVAILS over earily gratuitous assignees b/c the later gift assignmnet revokes the earlier one NY DISTINCTION: a gift assignment is IRREVOCABLE if embodied in a signed writing by the ASSIGNOR 2) Assignments for consideration are more DURABLE General rule: the FIRST assignee for consideration PREVAILS over all subsequent assignees (as well as gratuitous assignees) EXCEPTION: a later assignee for considertion prevails IF he (i) does not know about the earlier assignments; AND (ii) is the first to get pmt from or a jgmt againt the obligor
When has an offer been accepted? NOTE: NY Distinction
Yes, when… 1) When the the offer says so: the language of the offer cntrls E.g., the offer says “you can accept this offer by reporting for work on Monday”→you can only accept by showing up on Monday 2) Starting performance on a bilateral K: starting performance on a bilateral K is an implied obligation to FINISH NOTE: starting performance on a UNILATERAL K, is NOT acceptance (no obligation to finish!); ONLY finishing performance ISacceptance (REMEMBER: for MBE, once performance has begun, offeror CAN’T revoke offer; in NY, offeror can revoke up until completion) 3) Improper performance… Under common law is a SIMULTANEOUS acceptance AND breach Under Art. 2/UCC is SIMULATANOUS acceptance AND breach, UNLESS seller is sending the goods as an ACCOMODATION to buyer (this has to be made clear)→shipment is then a counteroffer (either the buyer accepts and pays FULL K price, OR she doesn’t and there are no damages) NOT, when… 1) Offeree remains silent (generally) E.g. “I’ll take your SILENCE as acceptance of this offer” TIMING…generally, acceptance is effective when MAILED (“Mailbox Rule”) NOTE: DOESN’T matter if the letter got lost in the mail; PROVIDED the letter was correctly addressed Compare with revocation by offeror, which is effective ONCE received by offeree EXCEPTIONS to Mailbox Rule Offer states otherwise (that the offer is effective once RECEIVED) Irrevocable offer, which must be RECEIVED by deadline Offeree sends REJECTION first, which makes it a RACE (i.e. whichever gets to offeror firstcntrl)
What is thedifference b/t a bilateral K and a unilateral K?
Bilateral K: an offer can generally be accepted in ANY reasonable way (“flexible”) Unilaterl K: an offer can be accepted ONLY by performing (“inflexible”) 2 typical fact patterns: Offer expressly says can only be accepted by performance Offer of reward, a contest or a prize NOTE: Look FIRST to see if there is an agmt, THEN see if it’s legally enforceable
What are the bodies of K law?
1) Art. 2 UCC: applies to a “sale of goods” “Goods” = movable, personal property Doesn’t MATTER if the parties are merchants or not In a “mixed K”, if goods are more significant, then UCC applies 2) K common law: applies to all other non-good Ks In a “mixed K”, if services are more significant, then common law applies On MBE: the lease of goods is classified as under COMMON LAW, but… NY DISTINCTION: 3) Art. 2A UCC: applies to a LEASE of goods (but NOT the lease of real property)
What is the “duress” defense?
Ks induced by duress or undue influence are VOIDABLE and may be recinded by ∆ (the intimdated party) as long as NOT affirmed NOTE: normally ECONOIMC duress is rare, BUT withholding something someone needs IS economic duress if: (i) the party threatens to commit a wrongful act that would threaten the other K-ing party’s finances; AND (ii) there are no adequate means available to prevent the threatened loss (BASICALLY economic extortion)
What is the “lack of capacity” defense? NOTE: NY Distinction
Categories = (i) minors; (ii)intoxicated; OR (iii) mentally incompetent General rule = an incapacitated ∆ MAY disaffirm the K (i.e. it’s VOIDABLE by ∆ ONLY) If there is IMPLIED affirmation (retaining the benefit ONCE (re-gaining capacity), then the K is no longer VOIDABLE An incapacitated party is liable for conferred NECESSITIES (e.g. food, shelter, clothing, medical care), but only for the reasonable value of the provisions (NOT the K price) NY DISTINCTIONS: 1) Certain Ks by infants CANNOT BE VOIDED Life insurance Ks by 14 yr olds + Educational loans by 16 yr olds + Realty K related to the marital home K involving artistic or athletic services 2) For mentally incapacitated Adjudicated incompetent→ K void Unadjudicated incompetent→ K NOT voidable UNLESS incompetent can restore other party to previous position
What is the “misrepresentation/non-disclosure” defense?
Depends on TYPE of misrepresentation: 1) Fraudulent misrepresentation/non-disclosure: If one induces another into a K by using a fraudulent misrepresentation/non-disclosure, the K is VOIDABLE if there is justified reliance 2) Non-fraudulent misrepresentation/non-disclosure: If one party innocently misrepresents/doesn’t disclose, the K is VOIDABLE if there is justified reliance AND the misrepresentation is MATERIAL
What is the “mistake” defense?
Two types of mistake… 1) Mutual mistake: if BOTH parties entering into a K are mistaken about a material fact that goes to the essence of the K, then the K is VOIDABLE by the adversely affected party BUT a mutual mistake as to value of an item is NOT considered material enough to be voidable 2) Unilateral mistake: if ONE party has a mistake, it’s generally does NOT render the K voidable EXCEPTION: if the nonmistaken party knew OR had reason to know of the mistake made by the other party, the K IS voidable by the mistaken party
What is the “no consideration” defense? NOTE: NY Distinction
Consideration = a “bargained for exchange”/”legal detriment”; a person can bargain for a promise, performance OR forbearance Past (moral) consideration (a promise given in exchange for something already done) ≠ real consideration! NY DISTINCTION: Past/moral consideration IS valid consideration IF it’s expressly stated in a signed writing and performance can be proven Adequacy of consideration is IRRELEVANT if there is a bargain (quid pro quo) Illusory promises are NOT enforceable (e.g. We agree that I can buy as many widgets AS I WANT for $100 each”; the quantity amt is TOO indefinite) K modification (common law vs. Art. 2/UCC) Common law: NEW consideration is required between ORIGINAL parties to modify a K [Preexisiting Duty Rule] NY DISTINCTION: don’t need NEW consideration if a signed writing embodies the modification Art. 2/UCC: consideration is NOT REQUIRED to modify a K, just need to show good faith Partial pmt of an EXISTING debtis not valid consideration (e.g. “I’ll pay $x in return for forgiving balance”); BUT… Time-bared (SOL) debt: a written promise to pay a debt which has been barred by SOL IS enforceable even w/o consideration EXCEPTION = Promissory estoppel FORSEEABLE reliance by promisee may make the promise enforceable even w/o consideration This is a “last resort” remedy by the ct
What is the “public policy” defense?
K can be VOID if violates public policy… 1) Covenant Not-to-compete: a ct will invalidate or narrow a convenant not to compete that operates as a restraint of trade, depending on… Scope of convenant (duration and geography): the farther in location and the longer in duration, the more likely void Need for convenant (uniqueness of services provided): top chef vs. bus boy 2) Exculpatory clause: can ltd liablity for negligence, BUT NOT gross negligence OR intentional torts
What is the “unconscionability” defense?
2 types… 1) Substantive: the TERMS are inherently unfair given relative bargaining pwrs (e.g. indentured servitude) 2) Procedural: the agmt PROCESS was unfair (e.g. sneaky terms in very small print) NOTE: generally “unconscionability” is NOT valid; act must “shock the conscience”
What are the 8defenses against formation of a K?
1) Lack of capacity(making the K voidable) 2) Duress (economic or physical) 3) Misrepresentaioninducing Agmt 4) Mutual mistake of a material fact at time of agmt 5) No consideration 6) Public policy 7) Unconscionability 8) Statute of Frauds (SOF)
What is the difference b/t express K and implied-in-fact K?
Express K = created by the parties’ WORDS (oral or written) vs. Implied-in-fact K = created by the parties’ CONDUCT
What are the 4 ways anoffer can be terminated?
1) Lapse: an offer lapses after a STATED TERM or a REASONABLE TIME has passed 2)Revocation (by offeror): an offer terminates once the offeror revokes the offer (before acceptance by offeree) 3) Rejection (by offeree): an offer terminates when the offeree rejects it (via inappropirate response) 4) Death: death of EITHER party before acceptance terminates a revocable offer, BUT NOT an irrevocable offer (i.e. an option)