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Contracts Flashcards

1
Q

What is:

  1. Void contract
  2. Voidable contract
  3. Unenforceable contract
A
  1. No legal effect from begging (k to commit a crime)
  2. Either party can avoid because of legal defense (mental illness / infancy)
  3. Otherwise valid contract but not enforceable because of defense (SOP)
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2
Q

Two Circumstances Unilateral contract?

A) advertisement get sick
B) advertisement quantity
C) quote

A

1) express contract
2) offer to the public

A) if you get sick we will give you $100
B) one car at this price
C) contract in response to inquiary “how much for car”

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3
Q
  1. Bilateral Contract
  2. Most contracts bilateral?
  3. Method of acceptance for bilateral contract is usually?
A
  1. promise for promise
  2. yes
  3. Silent - does not say
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4
Q

Missing quantity term for sale of widgets, contract?

What type of contract quantity does not matter / why?

A

No contract unless can ascertain

Output / Input contract - quantity is ascertainable

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5
Q

What is a Gap Filler UCC?

(3) instances?

A

Court will set the term despite the parties having not actually agreed on it.

  1. nothing stated
  2. parties could not agree
  3. third party was supposed to fix term but did not
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6
Q

“Gap Filler”

  1. Price not stated
  2. Place of delivery not specified (3)
  3. Time of shipment / delivery not specified
  4. Time of payment not specified
  5. Assortment of goods not chosen (2)
A
  1. Reasonable at the time of delivery
  2. a) at sellers business
    b) at sellers home
    c) where good are identified know to be by both
    parties
  3. Reasonable time
  4. Due at time and place goods are delivered
  5. a) buyers chooses if does not choose seasonably
    b) seller can reasonably chose
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7
Q

Vague or ambiguous term can you have a contract?

3 example of terms

A

No

1) fair
2) reasonable
3) appropriate

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8
Q
  1. Can starting to perform cure vagueness
  2. Is agreeing to split profits on a liberal basis vague
  3. Purchase property for 8k or less?
  4. Can you agree on terms later?
  5. Whats the exception to agreeing to terms later?
A
  1. Yes
  2. Yes
  3. Yes
  4. No
  5. Price
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9
Q

How is an offer revoked (3)?

A
  1. Unambiguous words
  2. Unambigoius conduct
  3. that offeror is unable or unwilling to contract
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10
Q

Must the offer be aware of the words or conduct?

a) i revoke offer in private
b) i sell car and do not tell you
c) you see car being driven by someone else
d) i learn of an offer to someone else

A

Yes

a) not revoked
b) not revoked
c) revoked (if sold to that person unambiguous conduct)
d) not revoked

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11
Q

When can you not revoke an offer if there is reliance (2)

A
  1. reasonably foreseeable
  2. detrimental
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12
Q

What happens if offeror starts performing on condition
acceptance?

a) b sends c keys after c accepted “provided that” arbitration clause

b) B sends C acceptance of purchase order grits “only if” arbitration clause?

c) B adds arbitration clause and C sends grits?

d) what is the difference b and c questions

A

Can create a contact

a) contract and clause is part of it (common law governance)

b) no contract (UCC governance)

c) yes contract BUT no arbitration clause

d) Bis conditional acceptance “only if”, C is an additional term

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13
Q

4 rules for Mailbox Rule

A
  1. All communications other than ACCEPTANCE are effective only when received.
  2. Acceptance generally effective when MAILED
  3. If REJECTION is mailed before ACCEPTANCE then neither is effective until received.
  4. Can’t use Mailbox rule for for option contract
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14
Q
  1. A sends acceptance after B sent revocation (A did not see revocation first)?
  2. A sends rejection to B then sends acceptance to B?
  3. A sends acceptance to B then sends rejection to B?
  4. What if B got rejection first?
A
  1. Contract formed
  2. Whichever one is received first
  3. Generally contract is formed
  4. A would be ESTOPPED from enforcing if B changed position / relied.
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15
Q

What are 3 reasons for not enforcing an agreement based on capacity?

A
  1. Infancy
  2. Mental
  3. Intoxication (if other party knows)
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16
Q
  1. What is the Statute of Frauds (SOF) designed to prevent?
  2. Who uses the SOF?
  3. How would Plaintiff / Claimant show proof?
  4. So whites the SOF?
A
  1. Claims of the existence of a contract
  2. Defendant the require plaintiff to show proof
  3. Writing or Performance
  4. A defense to a contract claim
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17
Q

What types of things are considered a transfer of land? (5)

A
  1. Leases for more than a year
  2. Sell land
  3. Leases easement for more than a year
  4. Mortgages
  5. Fixtures
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18
Q

When is a writing not required for goods $500+?(3)

A
  1. Specifically / unique manufactured goods
  2. Admissions in Court
  3. Payment or Delivery of Goods
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19
Q
  1. S sells T paint on credit. T does not pay. S brings claim against X stating X promised to pay, can X use a SOF defense?
  2. Same facts but S brings claim stating X “promised to pay if T did not pay” can X use a SOF defense?
  3. Whats the difference?
A
  1. No
  2. Yes
  3. No SOF if just promise to pay
    YES SOF if promise to pay if T does not pay
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20
Q

What is the first question you have to ask if satisfying the SOF by perform ace?

A

What type of contract is it
1) real estate
2) services contract
3) sale of good

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21
Q

P agrees to work for D for 3 years. D terminates P after 15 months work. Can D use a SOF defense and prevail?

A

Yes, P did not fully perform

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22
Q
  1. How does part performance work with the sale of goods and SOF?
  2. Who part performs on a bar exam?
  3. What question do you then ask?
A
  1. General rule part performance satisfies SOF
  2. The seller will deliver some good but not all
  3. Who is using the SOF defense / for delivered or undelivered goods?
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23
Q

Part performance works for satisfying the SOF for goods that are _______ but not _________ .

A

Delivered BUT NOT undelivered

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24
Q

What two things do you need to satisfy the SOF when you use a writing?

A
  1. material terms
  2. writing
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25
Q

What are the courts looking for to see if writing has all the material terms:

  1. Common law
  2. UCC
A
  1. The who and what
  2. Quantity
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26
Q
  1. What is the exception where a DEF signature is not needed SOF re goods?
  2. What is difference common law and UCC material terms
A
  1. Both merchants and delay in responding
  2. Common law need the who and what UCC need quanitiy
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27
Q

Confirmatory Memo?

A

Once a merchant sends a written confirmation to another merchant confirming an oral agreement it will bind the both the sender a receiver if:

  1. part has reason to know contents
  2. does not object in 10 days
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28
Q
  1. How can a DEF waive his SOF defense?
  2. What do some cases hold so that DEF cannot rely on a SOF defense (CA Essay)
A
  1. Admits in pleadings or court under OATH
  2. If Plaintiff relied on defendants promise they are ESTOPPED from asserting a SOF claim.
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29
Q

So what can a court CA or other ultimately do re DEF SOF defense?

A

Apply equitable or promissory estoppel

A. DEF falsely or intentionaly says not w/in SOF

B. DEF know PLAINTIFF is changing position

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30
Q

What are the rules for risk of loss? (4)

A
  1. Agreement - agreement of parties in contract
  2. Breach - breaching party liable for loss even if unrelated
  3. Common Carrier - risk of loss shifts once seller completes delivery obligation (shipment / destination K)
  4. Determining factor is seller merchant
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31
Q

First three risk of loss rules do not apply what does rule four state?

Example:

A

Is the seller a merchant

Merchant = risk of loss when delivered

Non Merchant = risk of loss once tendered

Merchant stove store on dock destroyed (merchant has risk of loss)
Non Merchant stove available on my back porch (buyer has risk of loss)

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32
Q

What type of words oral or written do you look for in express warranty

Steel Example (4)

A

“a promise of facts”

  1. All Steel
  2. Guaranteed 2 years
  3. Look at this sample
  4. Top Quality = NO
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33
Q

Implied Warranty fitness particular purpose

  1. What triggers it:
  2. What does it mean?
A
  1. a) Buyer has a particular purpose
    b) Buyer relies on seller to select goods
    c) Seller had reason to know the purpose
  2. The goods are fit for that purpose
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34
Q

What are 5 ways warranties are limited?

A
  1. Statute of Limitations
  2. Privity
  3. Buyers examination of goods
  4. Disclaimer
  5. Limitation of remedies
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35
Q
  1. If a buyer inspects goods and sees things what can this do?
  2. What does it not do?
A
  1. Can eliminate Implied Warranties if the defect is obvious on examination?
  2. does not eliminate express warranties
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36
Q
  1. Can you limit express warranties?
  2. What is generally the test?
A
  1. Yes
  2. Is the limit unconscionable
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37
Q
  1. Can a warranty of title be disclaimed
  2. To disclaim Implied Warranty of Merchanablibty with CONSPICUOUS writing what words must be in it?
A
  1. generally NO, maybe at sheriffs sale specific language
  2. must mention “merchantability”
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38
Q

2 ways to limit Implied warranty of merchantablity and implied warranty of fittness

A
  1. CONSPICOUS ***
      or
  2. “as is” or ‘with all faults” (no need conspicuous)
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39
Q

How could buyer get in PE of express warranty given orally, but written K contains no warranty and disclaimers? (4)

A
  1. Not a complete writing
  2. Not exclusive expression
  3. Unconscionable
  4. Misrepresentation - Mistake
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40
Q

What are the three things to remember about Perfect Tender Rule:

A
  1. Only applies to sale of goods?
  2. Seller does not have to be perfect but the goods and delivery must conform to the K
  3. Less than perfect, buyer can generally reject goods as long as Good Faith.
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41
Q

What can the buyer do if seller does not meet the perfect tender standard? (2)

A

Buyer can:

  1. Retain goods and sue for damages
  2. reject “all or any commercial untit” and sue for damages
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42
Q

How is rejection of goods limited? (3)

A
  1. cure
  2. Installment K
  3. Acceptance
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43
Q

When can a buyer reject on an installment contract?

A
  1. If there is a SUBSTANTIAL impairment in that installment that cannot be cured

-this is how rejection of goods can be limited

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44
Q
  1. Once buyer accepts goods what can’t buyer than do?
  2. So what does a buyer have if non-perfect goods?
  3. What if the goods are perfect?
A
  1. Reject the goods later
  2. A choice / fork in the the road (accept or reject)
  3. Must accept
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45
Q

What do you need for revocation of acceptance (3)

Example:

A
  1. Substantial impairment of goods
  2. Excusable ignorance
  3. Notice to seller in reasonable time after discovery

Sleeping bag does not work in cold bought in summer and used

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46
Q
  1. If buyer rejects or revokes acceptance, what must he do? (3)
  2. What are consequences if buyer rejects or revokes acceptance? (2)
A
  1. a) notify seller
    b) hold goods for seller
    c) follow sellers instructions
  2. a) goods back to seller
    b) no payment obligation
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47
Q

In CA essay re damages what should you almost always add re remedies / damages question.

A

Specific performance has a history in equity therefore, courts are reluctant to grant if money damages are available.

48
Q
  1. When can an unpaid seller get its goods back?
    (3) reclamation
  2. What is the key thing to look at?
A
  1. Buyer is insolvent at the time good s received
  2. Seller demands return within 10 days or resemble time if before delivery
  3. Buyer still has goods
49
Q
  1. What is the goal of damages for contracts?
  2. CA essay 3 things to mention re goal damages
A
  1. Compensate the plaintiff
  2. a. compensate the plaintiff
    b. expectation interest of plaintiff
    c. same dollar amount as if NO breach
50
Q
  1. What does the UCC want to do re breach for sale of goods?
  2. What are the 3 relevant facts breach UCC
A
  1. Put the innocent party where it would be had the breaching party performed.
  2. a. who breeched
    b. where are the goods
    c. was there a replacement deal
51
Q

What are the damages for sellers breach if:

  1. Seller breaches, buyer keeps goods?
  2. Seller breaches, seller had goods?
A
  1. Fair market value if perfect minus fair market value as delivered OR cost of repair.
  2. Market price at the time of the breach minus the contract price OR reasonable replacement price minus contract price WHICHEVER is greater.
52
Q

On a CA essay if you determine no expectation damages what should you address?

A

Write a paragraph about Reliance Damages.

Need to put back the p[plaintiff as if no breach

53
Q
  1. What are Liquidated Damages?
  2. What is the test for validity(2)?
  3. Liquidated damages can’t be a?
A
  1. contract provision regarding damages
  2. a. were damages difficult to ascertain at time of K
    b. provision (agreed upon amount) is a reasonable forecast compared to what the prospectively (most likely) probable
  3. Penalty
54
Q
  1. Will courts grant an order of specific performance not compete?
  2. What two situatons
A
  1. Generally yes
  2. a. unique service
    b. covenant is reasonable
55
Q

If a plaintiff is seeking equitable remedy of specific performance, what defenses may be available to DEF.

A
  1. LACHES - party delays in filing suit and increase
    cost of performance
  2. Unclean hands -plaintiff has wrongdoing / lies
  3. Bona Fide Purchaser - def purchased subject
    matter in good faith.
56
Q

B and S contact S to deliver grits to T (3rd party beneficiary)

When can B and S not cancel the contract which delivers grits to T (3rd party beneficiary)

A

Once T had relied on the contract,

Just having knowledge is not enough.

57
Q

What are 2 things you look for which gives excuse of non-performance after a contract is mad?

A
  1. The other part does not perform
  2. An event happens after the contract
58
Q
  1. So what is the difference between how UCC and Common Law handle Anticipatory repudiation?
  2. What must part do under UCC?
A
  1. UCC: reasonable grounds for insecurtyLAW: Unambiguous statement or conduct
  2. Ask for assurances
59
Q
  1. What is the exception for material breach quantity (amount) of preferance?
  2. What do you look for?
  3. O painting 10 house example?
A
  1. Divisible contracts you can recover for substantial performance on each
  2. weather contract stated lump sum or per performance base
  3. Contract states O is paid by P per house for 10 versus P paid for painting all 10. In the first example if O substantial performs on painting 1 house O will get paid versus the later P would need to substantial perform on painting 10 house to get paid

*can always recover under quasi-contract

60
Q
  1. What is an exception to strict compliance when it comes to express conditions?
  2. What is an example?
  3. Courts will look at?
A
  1. Condition of personal satisfaction
  2. X and Y contract for X to do painting. Y will pay not the condition the he is satisfied?
  3. Would a reasonable person be satisfeid
61
Q

4 ways excuse of performance may exist because of later contract.

A
  1. Recession
  2. Accord and Satisfaction
  3. Modification
  4. Novation
62
Q

Accord and Satisfaction

  1. Accord is:?
  2. Satisfaction is:?
A
  1. New agreement that replaces an already existing obligation.
  2. New agreement is performed and old obligation is excused
63
Q

Modification is:?

A
  1. Agreement by existing parties to accept a different agreement
64
Q
  1. How do you distinguish between accord and satisfaction and Modifications
  2. What are two key words to look for the would suggest accord and satisfaction
A
  1. Intent of the parties
  2. IF followed by THEN would be an accord and stratification
65
Q
  1. What is a Novation
  2. Who is liable for Novation
  3. How is delegation different than novation
A
  1. Agreement by both parties to an existing K to substitute a new party (same performance different party)
  2. The new party / novation excuse the party who was replaced
  3. Delegation does not require both parties agree and original part is still liable
66
Q

If there is an excuse of performance by reason of a later, unanticipated event what 3 things do you ask (3)?

A
  1. Which party is arguing that performance is excused
  2. What was the performance
  3. affect ability to perform, not just cost
67
Q

E contracts with C to sell 1973 Cadillac to C. After K but before before risk of loss has passed to C the car is destroyed. When E fails to deliver, C sues for breach. Can C recover?

A

NO - car is specific

  1. E perforce is due
  2. Specifically identified car
  3. C cannot deliver specific car
68
Q

E contracts to sell C 300 sacks of grits for $300. After K but before risk of loss passed to C, the grits are destroyed. E does not deliver grits, can C recover?

A

YES - grits not yet identified, E could get other grits

  1. E performance is due
  2. E supposed deliver grits
  3. Its possible to get other grits since not identified

Compare–grits on West side of warehouse.

69
Q
  1. Delegation:
  2. Ex Delegation:
  3. Whats the difference btween Delegation and Assignment?
  4. What usually happen in the real world?
A
  1. Party to a contract transfers work under contract to anohter
  2. P contracts with O to paint. P and X agree X will do the work.
  3. Delegate a duty and Assign a right.
  4. Delegate the duty and assign the right
70
Q
  1. What happens if K Prohibits Assignment (3)?

2.What happens if K Invalidates Assignment(2)?

  1. Any doubt on Bar exam what should you choose?
A
  1. a. takes away right but not the power to assign
    b. assignor liable for breach
    c. assignee can still enforce
  2. a. takes power and right to assign
    b. assignee has no rights
  3. PROHIBITATION
71
Q

Batman and Gotham contract provides “rights herder are not assignable” Not withstanding this contract provision, Batman assigns the right to the 300K payment to Robin, who does not know of the contract provision. Can Robin collect from Gothan?

A
  1. Yes a. Robin Not aware
    b. Language of prohibitation
72
Q
  1. Why would Batman assign to Robin for $10 a 300K payment form Gathom?
  2. What do you write on CA essay re Assignment(3)?
A
  1. Who cars maybe Batman thinks he will not get paid. Either way Batman gives up rights and gives warranties to Robin.
  2. a. Assignment is a transfer of rights
    b. Assignor then no longer has rights
    c. Assighnment for consideration can’t be revoked
    and assignee gets warranties
73
Q
  1. What does the assignee need to do for assignor to give warranties?
  2. What are the 3 implied warranties?
A
  1. Assignment must be for consideration
  2. a. right to assign actually exists
    b. no existing defenses exist with obligor
    c. assignor will not impair value of assignment
74
Q

What do most states require if promise is by debtor to pay a debt barred by SOL or which has been discharge in bankruptcy? (pmbr)

A

That it be in a signed writing - no knew consideration needed

75
Q

Are personal service contracts rights assignable? (pmbr)

ex: law firm

A

No, not without consent of promisor

ex: cannot assign your right to become partner in law firm to another attorney

76
Q
  1. Can a seller ever cure after performance is due?
  2. What must the seller believe?
  3. What do courts look at (2) ?
A
  1. yes
  2. Reasonably believe that the tendered goods were accepatble.
  3. a. trade / industry practices
    b. seller could have not known despite
    proper business practies
77
Q

What 3 things do you need for a valid contract?

A
  1. Offer
  2. Acceptance
  3. Consideration
78
Q
  1. When does an Offer exist:
  2. When does Acceptance exist:
  3. What is consideration:
A
  1. offeror presents the offeree a deal and signals acceptance will conclude the deal
  2. Offeree agrees to the terms and gives notice of assent
  3. Bargain for exchange and legal detrament
79
Q

Mirror Image Rule:

vs.

UCC: (3)

A
  1. Common law terms of acceptance must match terms in offer
  2. Additional terms can be part of contract if:
    a. both merchants
    b. does not substantially alter
    c. no notice of rejection of terms
80
Q

What are 4 methods that offers are terminated?

A
  1. lapse of time
  2. death of a party
  3. revocation
  4. rejection
81
Q

What are the four situations when an offer cannot be revoked?

A
  1. Option contract
  2. Firm offer
  3. Reliance
  4. Unilateral offer
82
Q

What are 3 methods of indirect rejection?

A
  1. Counteroffer
  2. Conditional Acceptance
  3. Additional Terms
83
Q

How do additional terms and UCC work? (2)

“seasonable terms of acceptance”

A
  1. additional terms WITH OUT a condition of acceptance is generally treated as acceptance.
  2. additional terms NOT PART of contract unless both are merchants BUT cannot be material or objected by offeror wit in reasonable time
84
Q

Accommodation exception under UCC?

ex:

A

Under the UCC if seller delivers non-conforming goods with a note then it = a counter offer not breach.

S sends B 100 blue widgets and says sorry not red but hope you can use?

85
Q

A orders 1,500 blue widgets from B. B sends 1000 blue and 500 black along with a letter of accommodation. What can A do?

A

A can sue for damages re the 500 black widgets.

86
Q

What happens subject matter or illegality:
a)prior to K
b)becomes illegal after K

A
  1. No valid offer or K
  2. K discharged - performance impossile
87
Q
  1. When do courts apply relief for unilateral mistake?
  2. Do courts like applying relief for unilateral mistake?
A
  1. When one party had reason to know that the other party was mistaken
  2. No
88
Q
  1. What is a common carrier?
  2. What does a seller have to do to complete delivery obligation?
A
  1. goods delivered by a party other than seller (FedEx, UPS, Amazon)
  2. Depends if: a. shipment contract
    b. destination contract
89
Q
  1. If nothing is stated FOB or otherwise, what type of contract does UCC assume it is re delivery.
  2. What if K states “ship to this address”?
A
  1. UCC presumes a shipment contract
  2. Does not overcome presumption that it is a shipment contract
90
Q

A orders 100 red widgets from T (FOB\ T Widget Plant). T
ships 50 red and 50 black and the widgets are damaged in transit.
1.) What type of contract
2.) Who has risk of loss

A
  1. Shipment contract (FOB\T plant)
  2. T (seller) because T breached
  • would be A had T not breached because shipment K
91
Q

R contracts with T to sell T 100 cows per month for 12 months. T states that just prior to K signing R said I will sell you as many as many cows as you need. Can court consider?

A
  1. No -not for the purpose of changing (PE)
92
Q

R contracts with T to sell T 100 cows per month for 12 months. T states that just after sighning K R faxed T a note stating I will sell you as many as many cows as you need. Can court consider?

A
  1. Yes - at least not blocked by PE
93
Q

A contract between S and; T states T has paid full consideration of $10. Can S bring in PE that T never paid?

A

Yes - defense for S no consideration to perform

94
Q

A and B contract for purchase of blue cars. 3 months after contract signed A and B orally agree to make half red? Can A bring this in?

A

Yes - not PE because not prior or contemporaneous to K

95
Q
  1. What makes a limit on a warranty prima facia unconscionable?
  2. B buys a stove form S. Contract states “all operating parts are guaranteed for 2 years and warranty of liability should be limited to replacement parts” stove catches fire and $150 property damage. What can B recover?
A
  1. breach of warranty that causes personal injury
  2. B can bring action for breach but only recover for replacement parts.
96
Q
  1. Does a seller always get an opportunity to cure?
  2. What is the test if after the delivery date?
  3. What should you look for?
A
  1. No
  2. Reasonable grounds
  3. Info in question about prior relationship
97
Q

B & S enter into a K for 200 green widgets. S delivers yellow widgets. Previously B had accepted widgets in colors different from what he had ordered, After B rejects because they are yellow, can S cure?

A
  1. Yes - S has “reasonable grounds” to believe B would accept a different color b/c of previous dealings
98
Q
  1. What are 2 ways a buyer can recover fro not perfectly tendered goods?
  2. Timing between the 2?
  3. Standard between 2?
A
  1. a. reject goods
    b. revoke acceptance
  2. a. reject early (before acceptance)
    b. revoke later ( after acceptance)
  3. a. generally must be perfect
    b. substantial impairment
99
Q
  1. What are consequential damages?
  2. What does plaintiff need to recover for consequential damages?
A
  1. damages special to the plaintiff, non-breachers
  2. plaintiff needs special circumstances which the def had reason to know at the time of the contract
100
Q
  1. M contracts with C carrier to transport goods to another village for repair for $1000. C breaches by nonperformance. M is unable to find anyone else who will transport the goods for less than $1500 and pays T to transport the goods. M sues for breach, any consequential damages?
  2. Same facts but C’s breach resulted in a 5 day delay and M loss 1 K profits. Consequential? Recover?
  3. Same facts but M told C that mill is closed until repaired so need part delivered? Consequential?
A
  1. No $500 in damges
  2. Yes consequential but not recoverable, $500 damages
  3. Yes $1000, M told C. C was aware.
101
Q
  1. Damages must be able to be proven?
  2. E who becomes a promoter for the first time contracts with MInt, for grand opening SOBE. Mint breaches 2 weeks before the contract. Should E be able to recover expectation damages?
A
  1. Within reasonable certainitty
  2. No can’t prove readable certainty how affective he would be.
102
Q
  1. B contracts to build store for O. Contract fixes damages for delay at$10K. Is this liquidated damages?
  2. Valid?
  3. What do courts like?
A
  1. yes
  2. Unlikely, I day or 1 month would be 10K
  3. a formula
103
Q
  1. If a party uses Anticipatory Repudiation, when can they recover?
  2. What is an exception?
A
  1. generally can make an immediate claim for damages
  2. claimant has already finished her performance (i.e. finished painting the house)
104
Q
  1. Can a party retract there Anticipatory Repudiation?
  2. What happens and how (3)?
  3. If 3 things above exist now what?
A
  1. yes.
  2. a. no change position by party
    b. timely retracted
    c. assurances given
  3. the party needs to perform
105
Q
  1. can damages be recovered for any breach
  2. At common law what type of breach excuses the other guy from performing?
  3. What type of question is its re something a breach?
  4. Can you have substantial performance and a material breach?
A
  1. yes
  2. material breach
  3. question of fact
  4. no
106
Q

What are 2 ways express conditions can be eliminated so that non-occurance does not affect performance obligation?

A
  1. Waiver - person given protection gives statement that he is giving up protection.
  2. Prevention - person protected by condition hinders or prevents occurrence.
107
Q
  1. P contracts to paint O house for 1k with payment to be made when work is completed. P begins work. P and O before P is done agree to remind contract. Valid?
  2. Same facts P had already finished painting valid?
A
  1. Yes
  2. No (P already performed)
108
Q
  1. What can the other guy do if the new accord is not performed?
  2. What can’t the other guy do?
  3. Same facts as card 271 (D and C agree that D can deliver 20 widgets instead of repay loan of 1K) D does not deliver widgets by agreed date. What can O do?
A
  1. Recover on first or second agreement.
  2. Recover on both
  3. O can recover on 1k loan or 20 widget delivery BUT not both.
109
Q
  1. If damage or destruction of goods / UCC what is first question you have to ask?
  2. Risk of loss buyer:
  3. Risk of loss seller:
  4. Can buyer recover:
A
  1. who has risk of loss
  2. buyers pays
  3. buyer does not pay
  4. depends if goods are identifiable
110
Q

What is the result if a subsequent law or regulation makes:

  1. contract illegal
  2. frustrates the purpose
  3. what is the key for frustration of purpose
A
  1. party excused
  2. party excused, purpose frustrated
  3. at the time of the contract both parties new what the purpose was
111
Q

B and S contract, S agrees to deliver 100 sacks of grits to T and B will pay S $300 for providing to T. S does not deliver. Can T recover from S?

A

yes T the third-party beneficiary may recovery

112
Q

B and S contract, S agrees to deliver 100 sacks of grits to T and B will pay S $300 for providing to T. S does not deliver.

  1. can B and S cancel contract before T learns of it?
  2. can B and S cancel contact after T learns of it?
  3. when could B and S not cancel the contract?
A
  1. yes
  2. yes
  3. T knows and relies on contract
113
Q

What is the exception to first Asignee for consideration wins?

A
  1. Both Asignees do not know of earlier assignment
  2. Asignee is first to obtain 1.payment
    2.novation
    3.judgememt
    4. indicates ownership
114
Q

Batman assigns to Robin for consideration and then assigns to Conviser for consideration. Convisier does not know of assignment to Robin and Conviser is the first to notify Goetham that he is an assignee. Gotham learns of earlier assignment to Robin before he pays. Whom should Goetham pay?

A

Robin - Ronin is first assignee and non of the exceptions exist (payment, novation, judgement, indicate ownership)

115
Q
  1. What is a difference between modification under UCC vs common law?
  2. Does modification need to be in writing?
A
  1. UCC–no new consideration needed
  2. Common Lae - need consideration - pre existing duty
  3. Yes if SOF would apply (ex goods 500
116
Q

3 things to look at to determine if there is an agreement?

A
  1. initial communication
  2. what happened to initial communication
  3. response, was there acceptance

Contracts (1 decks)

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