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Constitution Law Bar Prep > Contracts and sales > Flashcards

Contracts and sales Flashcards

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1
Q

how do you determine if a contract is for sales if the contract has goods and services?

A

determine which aspect is dominant

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2
Q

what are the elements of a contract

A

mutual assent: offer and acceptance
consideration: bargained for exchange OR substitute ( PE, good faith UCC, DR)
No defense: mutual mistake, lack of capacity, illegality, statute of frauds

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3
Q

the broader the comm….

A

the more likely the comm was a solicitation instead of offer

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4
Q

to constitute an offer

A

expression of a promise, undertaking, or commitment to enter contract
certain and definite terms
comm to offeree

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5
Q

what is req for definite sale of goods contract

A

quantity

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6
Q

what are some indicators of a vague contract term

A

reasonable, fair, appropriate

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7
Q

when an offeree gives a counter offer

A

the original offer is rejected and unenforceable, a new offer is proposed, the offeree becomes the offeror and vice versa

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8
Q

when an acceptance is made expressly conditional…

A

it is a rejection that reqs acceptance. if the parties perform the contract as originally stipulated the contract is implied through their conduct and the new terms are not apart of it

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9
Q

what happens when an option is rejected

A

does not terminate the offer, the offer stays open during the agreed upon option period

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10
Q

how can an offer be revoked impliedly

A
  1. offeree receives correct info of acts by offeror that would indicate to a reasonable person that offeror no longer wishes to offer
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11
Q

when is an offer irrevocable

A
  1. option contract
  2. firm offer under UCC (merchant, signed writing, writing assures offer held open)
  3. detrimental reliance
  4. beginning perfomrance under a true unilateral contract
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12
Q

what terminates an offer by operation of law

A
  1. death/insanity (no comm to other party req)
  2. destruction of proposed contact subject matter OR
  3. supervieinig illegality
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13
Q

when can the power to accept be assigned

A

when an option contract for consideratino

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14
Q

how to accept a bilateral contract

A
  1. a promise to perform

2. part performance

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15
Q

what is the common law rule for additional/different terms in an acceptance

A

rejection and counter offer

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16
Q

what is the UCC rule for additioanl/different terms

A

acceptance

additional terms (non merchant): not included in contract

additonal terms (merchant): in contract UNLESS: materially alter terms OR the contract expressly limits accpetance to terms OR offeror objected to new terms in reasonable time

different terms: either the test above or the knockout rule; conflicting terms knock each other out, gaps filled by UCC

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17
Q

mailbox rule

A

acceptance is effective at dispatch UNLESS
offer stipulates otherwise
option contract involved
offeree sends rejection then acceptance (whichever is first)
offeree send acceptance then rejection AND rejection arrives first AND offeror DR’s

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18
Q

consideration

A

bargained for exchange for

legal value

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19
Q

preexisting legal duty

A

no sufficient for consideration

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20
Q

modification of a contract

A

modern rule: only if the mod is due to unforseeable circumstances AND fair and equitable.

old rule: not unless new conisderation

UCC: CAN modify if modification is given in good faith

Modification: changing a contract AFTER performance begins

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21
Q

promissory estoppel

A

promisor reasonably expects to induce action AND action is induced

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22
Q

lack of capacity defenses

A

intoxication
minor
duress (econ duress: threat to seriously impact victim finances AND no means to prevent impact) undue influence (susceptiblity to influence, influence)
All are VOIDABLE, not void

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23
Q

misunderstnading for ambiguity

A

neither party aware: no contract
both aware: no contract
one aware: contract based on what ignorant party believed

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24
Q

mutual mistake

A

may be voidable to the adversly affected party if
mistake conserns a basic assumption of the contrract
mistke has a material effect on the exchange
party seeking avoidance did not assuem risk of mistake

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25
Q

is mistake in value a defense for contract formation

A

no

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26
Q

unilateral mistake

A

no, unless nonmistaken party knew or had reason to know mistake made by other party

27
Q

examples of unconciousnable contract provisions

A

adhesion, exculpatory clause for intentional acts, inconspicuous risk shifting provisions

28
Q

court remedy for unconscionable contract provisions

A

no contract
enforce without provision
limit app of provision to reasonable amount

29
Q

statute of frauds

A 
marriage
one year or more
land sale (mortgage, easement, leases, fixtures)
executory interests
goods 500 or more
surety of a debt
30
Q

when is a contract removed from s of F

A

modified out of s of f
land sale: part performance and oral contract
services: full performance
goods: specifically manu goods OR goods paid for or accepted

31
Q

writing req for statute of fraud

A

not formal
signing can be electronic, initials
writing can be receipt a letter, written offer accepted orally

32
Q

parol evidence rule

A

an express agreement in a writing that embodies the final expression of the bargain, the writing is an integration. any other writings prior to integration are inadmissible to vary the terms of the writing

33
Q

how do you determine an integration

A

is writing final expression

is it partial or complete

34
Q

what is outside the scope of the parol evidence rule

A

validity of a contract
conditions precedent to effectiveness
intepretation
collateral agreements

35
Q

what are the general rules of contract construction (theres alot)

A 
contracts constured as a whole
ordinary meaning
courts favor and presume contract valid
the parties course of dealing
usage of trade
parties course of performance
36
Q

what are the UCC gap filler provisions

A

price: reasonable price determined at time of delivery
place of delivery: sellers place of business
time: reasonable time
payment time: time and place the buyer receives the goods
assortment: at buyers option

37
Q

implied warranties under UCC

A

merchantability: only merchants who deal with good “fit for the ordinary purpose for which such good is used”
title: any seller, title is good
against infringement: merchant seller reg dealing in good, free of patent,copyright claims
fitness to a particualr purpose:

38
Q

can implied warratines be waived

A

yes, merchantability and fitness of purpose can be waived in disclaimer or “as is” general disclaimer

39
Q

when does risk of loss shift for defective goods

A

when seller has cured the defect OR buyer accepts goods anyway

40
Q

risk of loss for non-carrier cases

A

seller is merchant: risk of loss shifts when buyer takes physical possession

seller is nonmerchant: when tender of delivery

41
Q

risk of loss for carrier

A

shipment contract (default): shifts to buyer upon transfer of good to carrier. seller must
make reasonable contract with carrier
deliver goods to carrier
notify buyer of shipment
provide buyer with docs needed to take shipment

destination (req FOB or express risk of loss): shifts to buyer when gets to destination

42
Q

performance rules under UCC and common law

A

common law: substantial performance

UCC: perfect tender

43
Q

failure to meet a contract condition…

A

is not a breach; discharges nonbreaching party from liability of nonperformance

44
Q

what are implied conditions

A

notice
performance
cooperation

45
Q

what can the party to a contract do when a condition is not met

A

terminate laiblity OR

continue under contract (thereby waiving condition)

46
Q

anticipatory repudiation

A

when a proimsor, prior to the time set for performance, indicates thy wont perform when the time comes

47
Q

when does anticipatory repudiation excuse conditions

A
  1. bilateral executory contract

2. unequivocal

48
Q

effect of anit repudi

A

treat as total and sue
suspend and wait to sue until performance date
treat contract as discharged
ignore and urge performance (not waivor)

49
Q

test for divisible contract

A

the perofnamce of each party is divided into two or more parts
the number of parts due to each party is the same
the performance of each part by one party is agreed on as the equivalent of the corresponding part from the other party

50
Q

when has the duty to perform been discharged

A
  1. performance
  2. occurance of condition subsequent
  3. illegality
  4. recission
  5. partial discharge by mod of contract
  6. cancellation
  7. release
  8. substituted contract
  9. accord and satisfaction
  10. novation
  11. impossiblity, impractiability frustration
51
Q

accord and satisfaction

A

an agreement in whcih one party to an existgin contract agrees to accept some other different future performance. Then performance of the accord.

52
Q

must an accord be supported by consideration

A

yes

53
Q

breach of an accord agreement

A

by debtor: enforce original or accord

by creditor: raise accord as equitible D OR wait until damage and sue for breach of accord

54
Q

novation

A

an agreement to sub new party and new contract to assume duties of a party to old contract. you need

  1. valid contract
  2. agreement of all parties
  3. immediate extinguishment of original contract
  4. valid new contract
55
Q

what are the elements of frustration for discharge of contract

A

supervening events
no reasoanbly foreseeable
purpose of contract destroyed
purpose of contract realized by both parties when contract made

56
Q

what factors are used to determine materialiaty of breach

A 
amount of benefit received
adquacy of compensation 
extent of part performance
hardship to breaching party
negliegnece of breahing party 
lilihood breaching party will perform rest of contract
57
Q

options of nonbreahcing party in material breach

A

terminate duty to counterperform

AND imediate right to remedy

58
Q

when can a buyer revoke acceptance given after receipt of goods with perfect tender rule

A

accepted goods with reasoanble beleif the defect would be cured and it wasnt OR
they accepted goods bc defect detection difficult

59
Q

grounds for rejection in an installment contract under UCC

A

buyer may reject any installment that is nonconforming only if it substantially impairs the value of that installment and cannot be cured.

60
Q

if nonconforming goods received by buyer in installment contract under UCC…

A

still must accept if

-seller says theyll fix AND defects can be cured

61
Q

does a superveing illegality revoke an offer

A

yes, if offfer made before acceptance, then revokes offer

62
Q

illusroy contract

A

when a party promises to do something that doesn’t give value to the other party

63
Q

does a warranty disclamer for good (merchantability and fitness for part use) work if after offer and acceptance

A

no

Constitution Law Bar Prep (16 decks)

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