Contracts Flashcards

Question

Termination: Revocation (words or conduct)

Answer 1

A 2 player game! Words: unambiguous statement by offeror to offeree of unwillingness or inability to contract or Conduct: unambiguous conduct by offeror indicating an unwillingness or inability to contract that the offeree is aware of.

Answer 2

If offeree hears from a reliable source that the offer is dead-- terminated

Answer 3

Making similar offers to simlar people does not meant the original offer is revoked

Answer 4

Effective upon receipt

Answer 5

(1) option contract (2) merchant firm offer rule (3) reliance (4) unilateral contract-- start of performance

Answer 6

An offer cannot be revoked if the offeror has (1) promised to keep the offer open and (2) promise is supported by (even nominal) consideration

Answer 7

An offer cannot be revoked for up to 3 months if (1) offer to buy or sell goods (Article 2) (2) signed, written promise to keep the offer open (3) party is a merchant Merchant: generally a person in business

Answer 8

An offer cannot be revoked if there has been detrimental reliance by the offeree that is reasonably foreseeable Bid=offer

Answer 9

Start of performance pursuant to an offer to enter into a unilateral contract makes that offer irrevocable for a reasonable time to complete performance. Performance, not mere preparation! Preparation may trigger detrimental reliance

Answer 10

(1) counteroffer (2) conditional acceptance (3) additional terms (common law only)

Answer 11

Counteroffer terminates the offer and becomes a new offer. Where counteroffer made, no express contract unless counteroffer accepted. Mere bargaining does NOT terminate. Look at punctuation ? bargaining . counteroffer

Answer 12

Terminates the offer and becomes a new offer Look for phrases such as "if," "but," "provided," "so long," "on condition that" "Acceptance is expressly conditioned" Applies to Article 2 as well!

Answer 13

Mirror Image Rule Under common law, an "acceptance" that adds new terms is treated like a counteroffer rather than as an acceptane

Answer 14

(1) is there a contract? Under UCC, a response to a contract that adds new terms (but does not make the new terms a condition of acceptance) is generally a "seasonable expression of acceptance" (2) is additional term part of the contract? if BOTH parties are merchants, general rule is that additional term is part of the contract

Answer 15

(1) the additional term is NOT a part of the contract between merchants if it materially changes the offer or (2) the additional term is NOT a part of the contract between merchants if the offeror objects to the change Applies only when both parties are merchants!

Answer 16

If one or both parties is not a merchant, the additional term is merely a proposal to be separately accepted or rejected

Answer 17

Death or incapacity of either party after the offer but before the acceptance terminates the offer. DOES NOT AUTOMATICALLY TERMINATE A CONTRACT Exceptions: Option Part performance of offer to enter into unilateral contract

Answer 18

(1) a person who knows about the offer AND (2) the person to whom it was made Offers cannot be assigned. Options can be assigned unless otherwise provided.

Answer 19

Only possible issue is whether NOTICE of performance is required (1) what does offer provide (2) does offeree have reason to believe that offeror will not learn of acceptance Conduct, not words General rule- performance is acceptance.

Answer 20

Start of performance is acceptance of an offer to enter into a bilateral contract Offer is open to method of acceptance so start of performance is accepted

Answer 21

Start of performance is not acceptance of an offer to enter into a unilateral contract Offers require "performance" for acceptance "Performance requires completion of performance. Start of performance is not acceptance, need full performance!

Answer 22

Most offers can be accepted by a promise to perform. Mere promises are generally good enough. Offers that expressly require performance require full performance. Reward offers require performance

Answer 23

If offeree is "invited" to accept by mail, acceptance is effective when posted.

Answer 24

(1) generally communications are effective only when received (2) generally, an acceptance is effective when SENT (3) if rejection is sent first, ignore Rule 2 "schizophrenic acceptance" Rejecting and accepting loses benefit of the mailbox rule.

Answer 25

Acceptance and Breach

Answer 26

Counteroffer and no breach

Answer 27

Silence is not acceptance

Answer 28

If custom indicates silent acceptance is reasonable or offeree by words or conduct agrees that silence is acceptance, then silence is acceptable. Objective reasonable person standard.

Answer 29

Bargained for legal detriment Identify promisor and ask what did he bargain for. Identify promisee and ask what detriment did she incur

Answer 30

(1) performance (2) forbearance (3) promise to perform (4) promise to forebear

Answer 31

Asked for by the promisor in exchange for her promises

Answer 32

Giving up the right to do something that you were otherwise legally entitled to do

Answer 33

Promise in exchange for promise consideration UNLESS it is an illusory promise. Need mutuality of promise

Answer 34

Not relevant in contract law. Even a peppercorn will suffice. NOT the same as nominal consideration-- a joke transaction

Answer 35

Past consideration is NOT considerations

Answer 36

Expressly requested and expectation of payment

Answer 37

Doing what you are already legally obligated to do is NOT consideration for a promise to pay you more to do merely that. You need new consideration to modify a contract governed by common law

Answer 38

Addition or change in performance is adequate consideration

Answer 39

Under MBE/Restatement view, no consideration is needed for modification if fair and equitable in view of unforeseen circumstances Ex: rubble excavation

Answer 40

Third party promise to pay is legally enforceable consideration; no original duty to 3rd party

Answer 41

Article 2 does not have a pre-existing legal duty rule: good faith is the test for changes to an existing sale of goods contract

Answer 42

Key is whether debt is due and undisputed. If debt is due and undisputed, then part payment is not consideration for release. If debt is not yet due, part payment may be consideration for release

Answer 43

Substitute for consideration A written promise to satisfy an obligation for which there is a legal defense is enforceable without consideration

Answer 44

The most important consideration substitute. Elements: (1) promise (2) reliance that is reasonable, detrimental, and foreseeable, AND (3) enforcement is necessary to avoid injustice

Answer 45

(1) course of performance (2) course of dealing (3) custom and usage

Answer 46

Same people, same contract Ex: S contracts to sell 100 chickens a month to B for 12 months. First 3 shipments are boiling hens. B does not complain

Answer 47

Same people, different but similar contract Ex: S contracts to sell 100 chickens a month to B for 12 months. Under prior chicken contracts, S sent boiling hens and B complained.

Answer 48

Different but similar people, different but similar contract. Community norms of which the parties are or should be aware. Ex: S contracts to sell 100 chickens a month to B for 23 months. In chicken industry, chicken means up to 6 lb hens

Answer 49

Absent an agreement as to place of delivery, then the place of delivery is the seller's place of business unless both parties know that the goods are someplace else, in which case that place is the place of delivery.

Answer 50

Seller completes its delivery obligation when it (1) gets the goods to a common carrier (2) makes reasonable arrangements for delivery (3) notifies the buyer

Answer 51

Seller does not complete its delivery obligation until the goods arrive where the buyer is

Answer 52

Most of the time-- shipment contract FOB (city) FOB(city where seller is/where goods are)-- SHIPMENT CONTRACT FOB(any other city) DESTINATION CONTRACT

Answer 53

(1) after the contract has been formed, but before buyer receives the goods (2) the goods are damaged or destroyed and (3) neither the buyer nor the seller is to blame

Answer 54

Agreement of the parties controls

Answer 55

Breaching party is liable for any uninsured loss even though breach is unrelated to problem

Answer 56

Risk of loss shifts from seller to buyer at the time that the buyer completes its delivery obligations

Answer 57

Is seller a merchant? Merchant seller: risk of loss from merchant-seller to buyer upon buyer's receipt of goods Non-merchant seller: risk of loss shifts from a non-merchant seller when s/he "tenders" the goods Whether BUYER is a merchant is irrelevant

Answer 58

Importance of written contract as source of contract terms: exclusionary effect of written contract on earlier (or contemporaneous agreements) as a possible source of terms of the contract

Answer 59

Written agreement that the court finds is the final agreement, triggers the parol evidence rule

Answer 60

Written and final, but not complete

Answer 61

Written and final and complete

Answer 62

Contract clause such as "this is the complete and final agreement"

Answer 63

(1) parol evidence is limited to the words of the parties (2) parol evidence can be oral or written (3) parol evidence comes BEFORE the integration (4) need WRITTEN integration

Answer 64

Regardless of whether the writing is a complete or partial integration, the parol evidence rule does not prevent a court from considering earlier words of the parties for the limited purpose of determining whether there is a defense to the enforcement of such an agreement (misrepresentation, fraud, duress)

Answer 65

A court may consider evidence of terms inconsistent with the terms in the contract for the limited purpose of deciding whether there was a mistake in integration (i.e. a mistake in reducing the agreement to writing)

Answer 66

Regardless of whether the writing is a complete or partial integration, the parol evidence rule prevents a court from considering earlier agreement as a source of terms that are inconsistent with terms in the writtten contract

Answer 67

Notwithstanding the parol evidence rule, earlier agreements can be considered to resolve ambiguities in the written contract

Answer 68

The parol evidence rule prevents a court from considering earlier agreements as a source of consistent additional terms unless the court finds that the written agreement was only a partial integration

Answer 69

Look for words that promise, describe, or state facts, or look for a sample or model. Distinguish from sales talk which is more general, an opinion (mere puffing)

Answer 70

When any person buys any goods from any merchant, a term is automatically added to the contract by operation of law that the goods are fit for the ordinarily purpose for which such goods are used Seller=merchant-- DEALS IN GOODS OF THAT KIND

Answer 71

Triggering Facts: - Buyer has a particular purpose - Buyer is relying on seller to select suitable goods - Seller has reason to know of purpose and reliance Warranty Goods fit for a particular purpose

Answer 72

Express warranties generally cannot be disclaimed Eliminates IMPLIED warranties of merchantability and fitness "As is" or "with faults" CONSPICUOUS language of disclaimer mentioning merchantability

Answer 73

Does not eliminate warranty, simply limits or sets recovery for any breach of warranty. Possible even for express warranty. General test: unsconscionability Prima facie unconscionable if breach of warranty on consumer goods causes injury

Answer 74

Look to terms of contract

Answer 75

Article 2 general standard: subject to limited exception: the seller is obligated to deliver 100% perfect goods

Answer 76

If goods are less than perfect, the buyer has the option to reject unless cure or an installment sale contract Rejection of goods must occured before acceptance of goods

Answer 77

In some instances, a seller who fails to make perfect tender will be given a "second chance," an option of curing. Not every seller has the option to cure; buyer cannot compel seller to cure. (1) Time for performance has expired (2) Time for performance has not yet expired

Answer 78

In very limited situations, a seller has the option of curing even after the contract delivery date Statutory test: does seller have reasonable grounds for believing that improper tender would be acceptable (perhaps with money allowances) Look to prior dealings

Answer 79

Comes in early with imperfect tender-- buyer can reject but seller can cure

Answer 80

Substantial impairment rule; no perfect tender rule An installment sales contract requires/authorizes (1) delivery in separate lots (2) to be separately accepted Buyer has the right to reject an installment only where there is a substantial impairment in that installment that cannot be cured.

Answer 81

If a buyer accepts the goods, it can not later reject them (1) Express acceptance (2) Payment without opportunity for inspection-- NOT acceptance (3) Implied acceptance- retention after opportunity for inspection without objection. Buyer keeps goods without objection for >30 days.

Answer 82

In limited circumstances, a buyer can effect a cancellation of the contract by revoking its acceptance of goods. Requirements (1) nonconformity substantially impairs the value of the goods to the buyer (2) excusable ignorance of grounds for revocation or reasonable reliance on sellers assurance of satisfaction (3) Revocation within a reasonable time after discovery of nonconformity

Answer 83

(1) cash unless otherwise agreed (2) buyer can pay by check (3) seller does not have to take the check but that gives the buyer an additional reasonable time

Answer 84

Infants under 18 Mental incompetents-- lacks ability to understand agreement Intoxicated persons if other party has reason to know

Answer 85

Person without capacity has right to disaffirm

Answer 86

If a person without capacity retains benefits after gaining capacity, affirmation will be implied (more than 30 days after gaining capacity)

Answer 87

A person who does not have capacity is legally obligated to pay for things that are necessary (food, clothing, medical care, shelter) but that liability is based on quasi-contract law

Answer 88

If subject matter is illegal, agreement is void

Answer 89

If subject matter is legal but the purpose is illegal, the agreement is enforceable only by the person who did not know of the illegal purpose

Answer 90

False assertion of fact or concealment of fact No requirement of fraud, even honest misrepresentation of facts will matter Leads to contract rescission, not money damages

Answer 91

Physical duress Economic duress - "bad guy" makes an improper threat AND - vulnerable guy has no reasonable alternative

Answer 92

1) a part of contract law generally (common law + sale of goods) 2) empowers a court to refuse to enforce all or a part of an agreement 3) unfair surprise or oppressive terms 4) tested as of the time of the agreement was made 5) by the court

Answer 93

No contract if (1) parties use a material term that is open to at least 2 reasonable interpretations (2) each party attaches a different meaning to the term (3) neither party knows or has reason to know that the term is open to at least 2 reasonable interpretations IF 1 party knows-- contract exists under the innocent party's terms

Answer 94

No contract if (1) both parties mistaken (2) basic assumption of fact (not value) (3) materially affects the agreed exchange Key: does agreed upon subject matter exist? Mistake re: subject matter- no contract Mistake re: value- contract

Answer 95

Generally: courts reluctant to allow a party to avoid a contract for mistake made by only one party Exceptions: - "palpable" (obvious) mistakes - mistakes discovered before significant reliance by other party

Answer 96

Statute(s) designed to prevent fraudulent claims by requiring "special" proof that a contract exists

Answer 97

(1) is the contract within the statute of frauds? 5 common law areas and UCC Art. 2 (2) If so, is the statute of frauds satisfied? Either by performance or writing (3) Is there a statute of frauds defense? Statute of frauds is a defense to enforcement of the agreement within statute if statute not satisfied

Answer 98

MY LEGS M: Promise in consideration of marriage Y: Service contract not capable of being performed within one 1 of the time of contract L: Transfers of interest in real estate E: Promise by executor to pay obligation of estate from his own funds G: promise to answer for (guarantee) the debt of another S: Sale of goods for $500+

Answer 99

Not merely a promise to marry but rather a promise to do something or refrain from doing something if we marry

Answer 100

Not merely a promise to pay the estate's expenses but rather a promise to pay the estate's expenses from other funds (his own pocket)

Answer 101

Not merely a promise to pay, but rather a promise to pay if someone else does not

Answer 102

If main purpose or leading object of promisor is to serve a pecuniary interest of his own, the contract is NOT within the statute of frauds even though the effect is still to pay the debt of another

Answer 103

Specific time period, >1 year SOF Specific time period, > 1 year from date of contract SOF Task (nothing about timing) NO SOF Lifetime contract NO SOF

Answer 104

Transfers of interest in real estate do implicate the SOF UNLESS lease of one year or less

Answer 105

Statute of frauds applies to the sale of goods for $500 or more

Answer 106

Full performance by either party satisfies the statute of frauds Part performance of a services contract does not satisfy the statute of frauds

Answer 107

General rule is that part performance of a contract for the sale of goods satisfies the statute of frauds, but only to the extent of the part performance

Answer 108

Where S partially delivers goods, B will have no SOF defense for payment of delivered goods For undelivered goods, seller has a SOF defense. Buyer cannot prove existence of a deal.

Answer 109

If the contract is for the sale of goods that are to be specially manufactured, then the statute of frauds is satisfied as soon as the seller makes a "substantial beginning" of making or obtaining the goods Enough has been done you know these are custom

Answer 110

"Part performance" by buyer of real estate can satisfy the statute of frauds "Part performance" is generally any 2 of the following 3: - payment (full or partial) - possession, and/or - improvements Full payment by buyer of real estate does not satisfy the SOF!!!

Answer 111

Look at (1) the contents of the writing or writingS-- all material terms test [answer the question "who" and "what"] and (2) who signed the writing- signed by the person to be charged (i.e. the defendants)

Answer 112

Look to the content of the writing and who signed the writing The writing must contain the quantity term [answer the question ""how many"]

Answer 113

"Answer the damn letter exception" Both parties must be merchants The person who receives a signed writing with a quantity term that claims there is a contract fails to respond within 10 days of receipt

Answer 114

Admission= statement by the defendant acknowledging the agreement NOT a contract Judicial= statement appeared in pleadings, testimony, or in response to interrogatory

Answer 115

Authorization to enter into a contract for someone else Authorization must be in writing if the contract to be signed is within the statute of frauds (i.e. the authorization must be of "equal dignity")

Answer 116

There is a legal requirement of written evidence of a contract change: (1) look at the deal with the alleged change and (2) determine whether the deal with the alleged change would be within the statute of frauds if yes-- alleged modification. agreement must be written

Answer 117

Effective unless waived

Answer 118

A mutually agreed upon promise modifier. It is language in a contract-- not merely in response to an offer-- that does not create a new obligation, but merely limits obligations created by other language in the contract. Distinct from covenant Distinct from conditional acceptance

Answer 119

Express conditions are created by language of contract. Watch for words such as "if" "provided that" "so long as" "subject to" "in the event that" "unless" "when" "until" and "on condition that" rarely on the bar exam

Answer 120

STRICT compliance with express conditions

Answer 121

Condition based on approval of one of the contracting parties is treated as satisfied if reasonable person would approve, unless subject to art or other matters that are inherently discretionary

Answer 122

Identify the person who benefits from or is protected by the condition. Then look for a statement by that person giving up the benefits and protection of the condition Estoppel is based on a statement by the person protected by the condition BEFORE the conditioning event was to occur and requires a change of position

Answer 123

Waiver is based on a statement by the person protected by the condition AFTER the conditioning event was to occur and does not require a change of position

Answer 124

(1) Rescission (2) Accord and satisfaction (3) Modification (4) Novation

Answer 125

Key is whether performance is still remaining from each of the contract parties (execution) Not fully executed Not fully performed

Answer 126

IF + THEN Accord: an agreement by the parties to an already existing obligation to accept a different performance in satisfaction of the existing obligation Satisfaction: the different performance Effect: if accord is performed, original contract excused. If accord is not performed, other party can sue on either original obligation or on the accord, but not both

Answer 127

An agreement by parties to an existing obligation to accept a different agreement in satisfaction of the existing obligation Parties know, like, and trust one another

Answer 128

An agreement between both parties to an existing contract to the substitution of a new party (ie the same performance, different party) Novation excuses the contracted for performance of the party who is substituted for or replaced Delegation does not require agreement of both and does not excuse

Answer 129

(1) Something that happens after contract formation but before the completion of contract performance, and (2) that was unforeseen, and (3) that makes performance impossible or commercially impracticable or frustrates the purpose of the performance

Answer 130

After contract, but before risk of loss passes to buyer-- seller's nonperformance excused No excuse if sale of widgets

Answer 131

After contract AND after risk of loss passes to buyer-- buyer's performance is NOT excused as to unique items *Still have to pay for the Cadillac

Answer 132

Where breaching party is a "special person" death is excused, nonperformance is excused, and NO RECOVERY

Answer 133

Where person not party to the contract dies-- nonperformance is NOT excused due to death

Answer 134

Nonperformance not excused, recovery permitted

Answer 135

Later law makes performance of contract illegal

Answer 136

Later law or other event makes mutually understood purpose of contract illegal

Answer 137

Look for two parties contracting with common intent to benefit a third party

Answer 138

Not a party to the contract. Able to enforce contract others made for her benefit

Answer 139

Person making the promise that benefits the third party

Answer 140

Person who obtains promise that benefits the third party

Answer 141

Only intended beneficiaries have contract rights If party's name is mentioned in the contract, treat her as an intended beneficiary

Answer 142

Intended beneficiaries are either donees or creditors Start with assumption that party is a donee Look at whether third-party beneficiary was a creditor of the promisee before the contract

Answer 143

Test: whether third party knows of and has relied on or assented as requested. If yes-- rights have vested and contract cannot be canceled or modified without her consent unless the contract otherwise provides

Answer 144

Beneficiary can sue promisor directly Promisee can sue promisor directly Donee beneficiary cannot sue promisee Creditor beneficiary can sue promisee on preexisting debt

Answer 145

If the third party beneficiary sues the promisor, the promisor can assert any defense that he would have had if sued by the promisee

Answer 146

Transfer of rights under a contract in two separate steps (1) Contract between only two parties (2) One of the parties later transfer of rights under that contract to a third party

Answer 147

Party to the contract who later transfers rights under the contract to another (Batman)

Answer 148

Not a party to the contract, able to enforce the contract because of the assignment

Answer 149

Other party to the contract (Gotham)

Answer 150

Language of prohibition takes away the right to assign but not the power to assign, which means that the assignor is liable for breach of contract, but an assignee who does not know of the prohibition can still enforce the assignment

Answer 151

Language of invalidation takes away both right to assign and the power to assign so that there is a breach by the assignor and no rights in the assignee

Answer 152

Even if a contract does not in any way limit the right to assign, common law bars an assignment that substantially changes the duties of the obligor. Assignment of right to payment usually ok. Assignment of other performance rights NOT okay.

Answer 153

Need language of present assignment Consideration is not required

Answer 154

Assignee can sue the obligor. Obligor has some defenses against assignee as it would have against assignor. Payment by obligor to assignor is effective until obligor knows of assignment.

Answer 155

Last assignee generally wins. Gratuitous assignments are possible, but generally freely revocable. Revocation can be direct or indirect: bankruptcy, death, the assignor taking performance directly from the obligor, or the making of another assignment

Answer 156

General rule: first assignee for consideration wins

Answer 157

A subsequent assignee takes priority over an earlier assignee for value only if he both (1) does not know of the earlier assignment AND (2) is the first to obtain payment, a judgment, a novation, or an indicia of ownership

Answer 158

In an assignment for consideration, the assignor makes a warranty that the rights assigned are assignable and enforceable

Answer 159

Party to a contract transferring work under that contract to a 3rd party Work: duties or burdens

Answer 160

(1) contract prohibits delegations or prohibits assignments (2) contract calls for VERY SPECIAL SKILLS or (3) person to perform contract has a VERY SPECIAL REPUTATION Can't delegate to other people even with special skills or reputation

Answer 161

Delegating party always remains liable. Delegatee liable only if she receives consideration from the delegating party. Liable to delegating party and original party (3rd party beneficiary obligation)

Answer 162

(1) Damages can be recovered for any breach (2) only a material breach by one guy excuses the other guy from performing (clearly less than 50%) (3) whether a breach is material is a question of fact (and therefore not likely to be a bar exam question)

Answer 163

Material breach rule is applied on a unit by unit bases Remember- the sale of goods- Art. 2- perfect tender rule

Answer 164

Unambiguous Statement that (1) that the repudiating party will not perform (2) was made prior to the time the performance was due Anticipatory repudiation by one party excuses the other party's duty to perform. It also generally gives rise to an immediate claim for damages for breach.

Answer 165

Anticipatory repudiation an be retracted so long as there has not been a material change in position by the other party. If the repudiation is timely retracted, the duty to perform is reimposed, but performance can be delayed until adequate assurance is provided.

Answer 166

One party's inability to perform will excuse the other party's performance

Answer 167

Courts reluctant to grant equitable remedy of specific performance. Historically, equitable remedies are available only if legal remedy is inadequate.. Secondly, judicial administration of SP decree would be difficult. Courts now somewhat more open to granting SP.

Answer 168

Yes, specific performance available All land is unique

Answer 169

No SP unless (unique goods) antiques, art, custom-made) or other appropriate circumstances

Answer 170

No specific performance, possible injunctive relief

Answer 171

Equitable remedy; court changes contract (reforms) Facts to watch for: - mistake in writing agreement, commissions, clerical errors, etc. - fraudulent misrepresentation as to what is in the agreement (can also get rescission)

Answer 172

Right of an unpaid seller to get its goods back Key facts: - buyer must have been insolvent at the time that it received the goods - seller demands return goods within 10 days of receipt (becomes a reasonable time rule) if there had been an express representation of solvency by buyer, and - buyer still has goods at the time of demand

Answer 173

If an owner leaves her goods with a person who sells goods of that kind, and that person wrongfully sells her goods to a third party, then such a good faith purchaser (BFP for value) cuts off rights of the original owner/entruster

Answer 174

Compensate plaintiff for loss, not punish defendant

Answer 175

Expectation interest Put plaintiff in same economic position as if contract had been performed

Answer 176

Put plaintiff in same economic position as if contract had never happened

Answer 177

Put defendant in same economic position as if contract had never happened (prevent unjust enrichment)

Answer 178

(1) who breached | (2) who has the goods

Answer 179

Buyer entitled to fair market value (if perfect) MINUS fair market value (as delivered)

Answer 180

Buyer entitled to market price at time of discovery of the breach MINUS contract price OR replacement price MINUS contract price

Answer 181

Seller gets contract price

Answer 182

Seller will get Contract price MINUS market price at time and place of delivery OR Contract price MINUS resale price AND, in some situations provable lost profits

Answer 183

Where there would have been 2 sales, and Sale #2 does not replace Sale #1, (ie Sale # 2 would have happened anyways) Can recover provable lost profits

Answer 184

Costs incurred in dealing with breach are always recoverable doesn't matter if foreseeable or not

Answer 185

Damages arising from plaintiff's special circumstances; recoverable only if defendant had reason to know at the time of contract "be chatty rule"

Answer 186

Reasonable certainty: damages can't be "speculative"

Answer 187

No recovery for damages that could have been avoided without undue burden on plaintiff Burdens of pleading and proof on defendant

Answer 188

Contract provision fixing amount of damages

Answer 189

Concern is whether provision is too high-- a penalty Test for enforceability: (1) damages were difficult to forecast at time contract was made and (2) provision is a reasonable forecast

Answer 190

Look for contract provision limiting amount that can be recovered. Concern is whether provision is too low (so low as to be unconscionable) at time of formation

Answer 191

Armadillos from Texas Play Rap Eating Tacos ``` Applicable law Formation Terms Performance Remedies Excuse Third party rights and obligations ```

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Contracts Flashcards

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