Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

1L > Contracts > Flashcards

Contracts Flashcards

1
Q

Condition

A

event that is uncertain to occur but must occur, unless nonoccurrence is excused, before performance under the contract becomes due. (R 224)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

If a contract is ambiguous…

A

courts prefer to impose a duty rather than a condition. (R 227)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Why do courts prefer to impose a duty?

A

reduce obligee’s risk of forfeiture, courts prefer deal go through

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Once the condition has occurred…

A

the obligor’s performance is due (R 225)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

2 Types of Conditions

A

Express and Constructive (Implied)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Express Conditions

A

strictly enforced conditions agreed upon by both parties (Luttinger)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

When does a breach excuse the other party’s performance?

A

A party’s breach excuses the other party’s performance if the non-breaching party’s obligations were dependent on the breaching party’s obligations.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

If a condition is precisely described…

A

it has to be met for the contract to be enforceable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Time is of the essence

A

Specific date of performance does not necessarily mean that performance by that date is “of the essence” to the contract (R 242; Internatio)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

When can express conditions be waived?

A

after being repeatedly and constantly disregarded (McKenna)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Satisfaction as a Condition

A

If satisfaction is a condition that must be met before the other party has to perform,, a reasonable person’s opinion of satisfaction (if practicable) satisfied the condition. (R 228, Gibson)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Unqualified approval is a…

A

condition precedent to purchaser’s obligation to pay

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Duty of Good Faith and Fair Dealing

A

R 205–making decisions regarding satisfaction in good faith is a constructive condition; it is a breach if you say something is unsatisfactory in bad faith

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

If nonoccurrence of a condition causes disproportionate forfeiture…

A

a court may excuse the nonoccurrence, unless its occurrence is material to the contract (R 229)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Framing Questions for Conditions: (Internatio)

A
  1. What was the condition?
  2. What was the obligation if the condition occurred?
  3. Who was the condition to benefit?
  4. Who had the risk of the condition not occurring?
  5. Who controls whether or not the condition occurs?
  6. Was the condition also a duty?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Mitigating Doctrines of Express AND Constructive Conditions

A
  1. Prevention
  2. Waiver, Estoppel, and Election
  3. Interpretation and the Avoidance of Forfeiture
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Nonoccurrence of a Condition

A

Where a party’s breach by nonperformance contributes materially to the nonoccurrence of a condition of one of her duties, the nonoccurrence is excused

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Who does nonoccurrence have a very large forfeiture on?

A

The obligee

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

When is a duty due?

A

when the condition has occurred, or the nonoccurrence of a condition is excused

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

When is a duty discharged?

A

Nonoccurrence of a condition

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Constructive Conditions

A

the making of contractual obligations into conditions due to the court’s interpretation of what the parties intended, imposed by the law to do justice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

If one performance takes time…

A

it must be fully performed before the obligor’s performance becomes due, unless otherwise specified in the contract (R 234(2))

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

If a contract does not dictate when payments shall occur…

A

it is implied that the work must be substantially performed before payment becomes due (Stewart)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

2-511

A

in a sale of goods, payment is a constructive condition to the seller’s duty to deliver; seller doesn’t have to deliver goods until he gets paid

25
Q

2-507(1)

A

seller must offer/deliver goods before the buyer has to pay

26
Q

R 234/R 238

A

Simultaneous transactions occur simultaneously and each performance is conditional

27
Q

Mitigating Doctrines of Constructive Conditions ONLY

A

substantial performance, divisibility, restitution

28
Q

Substantial Performance

A

performance of the condition has been completed enough that the court will deem it to be full performance of the condition which then triggers the conditional duty; mitigates the harshness of constructive conditions

29
Q

Does substantial performance apply to the sale of goods?

A

NO GOODS MUST BE PERFECT

30
Q

Doctrine of Substantial Performance

A

choice between difference in market value of expected and received performance or the cost of completing or remedying the nonconforming performance

31
Q

Can a willful deviation result in a finding of substantial performance?

A

NEVER

32
Q

Rule of Jacob & Youngs v. Kent

A

don’t have to complete it perfectly, just substantially

33
Q

When determining if substantial performance has occurred, consider

A
  1. purpose to be served
  2. desire to be gratified
  3. excuse for deviation
  4. cruelty of enforcing adherence
34
Q

If substantial performance has occurred, is there material breach?

A

NO, but can still recover damages for partial breach; difference in value of expected vs. received performance (In J&Y it was 0); HOWEVER, a breach is a breach is a breach no matter how small and can still result in damages

35
Q

Perfect Tender Rule

A

substantial performance equivalent for sale of goods

36
Q

Seller may substitute conforming goods if:

A
  1. he had reasonable grounds to believe the substitute tender would be accepted, AND
  2. he notified the buyer of his intention to use substitute tender
    If both are met, buyer is obligated to perform their duty. STRICT PERFORMANCE is the only exception
37
Q

2-508

A

Seller’s right to cure

38
Q

Divisibility

A

a contract can be severable if the part to be performed by one party consists of several distinct items and the price to be paid is attached to each distinct item being performed (Gill)

39
Q

Do progress payments constitute a divisible contract??

A

NO

40
Q

Magic Tees

A

if parts or steps are “merely incidental” to the contract as a whole, the court may determine the contract to NOT be divisible

41
Q

Restitution

A

party in breach can ask for restitution to recover any value he gave to the injured party (R 374); usually when a down payment is involved or breach due to mistake, impracticability, or frustration of purpose

42
Q

Is materiality of breach within the control of the injured party?

A

NO, but whether to treat the breach as partial or total is

43
Q

Factors to Determine Materiality of Breach (R 241)

A
  1. degree to which the injured party has already received the benefit
  2. degree to which the injured party may be compensated for lack of performance
  3. extent to which the party failing to perform has already partly performed or prepared to perform
  4. hardship that termination of the contract would impose on the party failing to perform
  5. willful, negligent, or innocent behavior of the party failing to perform
  6. degree of uncertainty that the party failing to perform will complete the contract
44
Q

If the breach is non-material…

A

the injured party must continue performance and treat the breach as partial

45
Q

If the breach is material…

A
  1. continue performance and treat the breach as partial

2. stop performing and treat the breach as total (R 236-237)

46
Q

Claim for damages for partial breach:

A

damages based on only part of the injured party’s remaining rights to performance

47
Q

Claim for damages for total breach:

A

damages based on all of the injured party’s remaining rights to perform

48
Q

R 242, UCC 2-508(2)

A

if circumstances make it appropriate for the injured party to suspend performance and demand a cure, the injured party is expected to do so before declaring total breach and terminating the contract

49
Q

Certainty of Material Breach

A

must be certain it is a material breach before repudiating, because if it is not material, YOU become the breaching party and are liable for damages

50
Q

For repudiation to be warranted…

A

the breach must be sufficiently material

51
Q

After-Acquired Evidence

A

if a party terminates a contract a contract and only later discovers facts that would have justified termination, those facts can be used to avoid liability;

52
Q

Cooperation

A

implied obligation to not hinder the promisor’s performance, but there is not an obligation to help someone perform; good faith obligation to adhere to contracts

53
Q

Prevention

A

mere difficulty to perform does not excuse breach, but if the buyer prevents the seller from performing, it may be excused

54
Q

Anticipatory Repudiation

A

not accompanied by a breach by non performance; occurs before the time for performance is due

55
Q

Repudiation

A

sufficiently positive communication by words or actions that a party will not or cannot perform–NOT A BREACH

56
Q

Breach

A

failure to perform an obligation

57
Q

If repudiation is accompanied by breach…

A

gives rise to a claim for damages for total performance

58
Q

Timing of repudiation affects…

A

how damages calculated

1L (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions