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Lexbar Cards > Contracts and Sales > Flashcards

Contracts and Sales Flashcards

1
Q

Is an agreement to agree in the future an enforceable K?

A

No

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2
Q

Terms of a K under UCC must include

A

only quantity

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3
Q

What happens if other terms are missing under UCC

A

UCC fills the gap

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4
Q

Employment Ks are presumed at will unless

A

K explicitly limits the situations in which an employer may terminate an employee

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5
Q

What must an offer contain?

A

words of promise, undertaking or commitment and be targeted to a number of people who could actually accept

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6
Q

Promise for promise is what kind of K?

A

bilateral

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7
Q

promise for an act

A

unilateral K

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8
Q

Advertsisements are only an invitation to

A

deal (but may qualify as an offer if sufficiently specific and limit who can accept or if associated w a stated reward

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9
Q

If no time is stated, offer is terminated upon

A

reasonable time

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10
Q

Offer terminating upon death of offeror

A

offer terminates even if oferee doesnt learn of offeror’s death until after offeree has sent what he believes to be an acceptance

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11
Q

Exception to offer terminating upon death

A

option K

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12
Q

Is offer terminated if illegality/destruction?

A

yes

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13
Q

Can offer be revoked before acceptance?

A

Yes even if it states it will be open for a specific amount of time

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14
Q

Revocation is not effective until

A

communictaed…if sent by mail not effective til received

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15
Q

UCC firm offer rule

A

offer is irrevocable for a reasonable time not more than 3 months if offeror is a merchant and assurances are made that offer will remain open in writing

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16
Q

Promissory estoppel

A

offer may become irrevocable where offeree detrimentally relies on offer

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17
Q

For all Ks offeree must have ____ of the offer when performance begins

A

Knowledge of the offer

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18
Q

Can offeror revoke once offeree has begun performance in a unilateral K?

A

no

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19
Q

Can offeror revoke once offeree has begun performance in a bilateral K?

A

no, commencement of performance operates as a promise to render complete performance

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20
Q

Revocation of general offers (to large number of people)

A

revocable only by notice given in at least same lvl of publicity as offer

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21
Q

Rejection by offeree occurs wherre

A

offeree clearly conveys to offeror that he no longer intends to accept the offer

  • rejection usually effective upon reciept

-counteroffer acts as rejection of original offer and creates a new offer

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22
Q

Acceptance in a bilateral K occurs where

A

parties exchange promises that render both enforceable

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23
Q

acceptance in a unilateral K

A

promise to do something by one party in return for an act of the other party

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24
Q

Unless offeror specifies, offeree can accept by

A

any reasonably manner

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25
Q

Silence as acceptance?

A

silence is not acceptance unless offeree has reason to believe offer could be accepted by silence or previous dealings make it reasonable to believe that offeree must notify offeror if he does not intend to accept

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26
Q

Nonconforming goods shipped constitutes

A

both an acceptance and a breach, unless seller seasonably notifies buyer that goods are an accommodation (counteroffer); buyer may then accept or reject the nonconforming goods

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27
Q

Mailbox rule: acceptance

A

acceptance is effective when sent, not receipt, unless K provides otherwise

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28
Q

Mailbox rule: rejection following acceptance

A

Acceptance will control even if offeror receives rejection first

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29
Q

Mailbox rule: acceptance following rejection

A

mailbox rule does not apply;

first one received will prevail; offeror need not read the received communication

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30
Q

Mailbox rule: revocation is effective upon

A

recipt

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31
Q

Does mailbox rule apply to options and other irrevocable offers?

A

no, acceptance must be received by offeror by a certain date or before offer expires

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32
Q

UCC acceptance containing additional or different terms are generally treated as

A

acceptance

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33
Q

UCC acceptance with additional terms where one or both parties are not merchants

A

definite and seasonable expression of acceptance sent within a reasonable time is usually acceptance of original offer, NEW/DIFFERENT TERMS ARE TREATED AS PROPOSED ADDITIONS TO THE K THAT MUST BE SEPERATELY ACCEPTED BY OFFEROR

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34
Q

Additional terms in K where both parties are merchants

A

additional terms are automatically included in the K unless

1) term materially alters original K

2) offer expressly limits acceptance to terms of the offer; or

3) offeror objects to new terms within a reasonable time after notice of new terms is received

If one of these expections is met, og terms control

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35
Q

What happens if there are different terms in offer/acceptance

A

they nulllify eachother and ct uses article 2’s gap filiing provisions

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36
Q

What happens when offer and acceptance differ too much to create a K but parties begin to perform anyway

A

UCC allows for a K to be recognized w following terms

1) any terms actually agreed on in parties’ writings; and

2) any supplementary terms filled in by UCC

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37
Q

Does VA enforce promises to pay for past acts as consideration?

A

no

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38
Q

Executory K: is an exchange of promises adequate consideration?

A

yes

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39
Q

What is required for a K modification under UCC

A

good faith, no consideration necessary

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40
Q

Does VA recognize promissory estoppel?

A

No

41
Q

Defense to formation Mutual Mistake

A

K is voidable by party adversely affected if mistake existed when K was formed, mistake relates to basic assumption of the K, mistake has material impact on transaction, and adversely affected party did not assume the risk of mistake

42
Q

Unilateral mistake

A

one party is mistaken as to an essential element of the K, but either party can enforce K on its terms

43
Q

Is unilateral mistake a basis for equitable relief?

A

No

44
Q

Misunderstanding occurs where

A

both parties believe they are agreeing to same material terms, but they in fact agree to different terms..

no K if neither party knows

if one party knows or has reason to = K

Both parties know terms ambiguous at time of formation = K

Waiver: one party can choose toe nforce K according to other party’s understanding

45
Q

Fraudulent misrep

A

knowing or reckless false assertion of fact w intent to mislead…misrep induced assent to K and other party justifiable relied,,,,

46
Q

Consequence of Fraud in Factum for Misrep

A

K is void

47
Q

Consequence of fraud in inducement in misrep

A

voidable

48
Q

Does a party’s fault in not knowing or discovering facts before entering into the K prevent the party’s reliance on the misrep from being justified?

A

No

49
Q

Does a party’s fault in not knowing or discovering facts before entering into the K prevent the party’s reliance on the misrep from being justified

A

No

50
Q

Is K voidable if facts are cured before deceived party avoided the K

A

NO

51
Q

Undue influence

A

unfair persuasion of a party to assent to a K

52
Q

Damages in undue influence

A

restitution

53
Q

Duress

A

improper threat that deprives party of meaningful choice

if physical compulsion = void

other instances = voidable

54
Q

Infancy makes K voidable by

A

infant, not adult except for reasonable value of necessaries

55
Q

Reasonable value of necessaries inquiry

A

1) does K provide necessities as a matter of law

2) Is there sufficient evidence that the things supplied were in fact necessary?

3) Were the things supplied actually necessary to the infant?

56
Q

Mental illness: void/voidable

A

void if it makes person incompentent, voidable if not

57
Q

Guardianship entered by individual under guardianship: void/voidable

A

void

58
Q

Intoxication: void/voidable

A

voidable by intoxicated party if she was unable to under nature/consequences of action

59
Q

Is K void if it contemplates illegal conduct?

A

Yes

60
Q

Unconscionability, inequality must be so gross that it

A

shocks the conscious

61
Q

Are exculpatory clause for future negligence void?

A

yes

62
Q

Are indemnity clauses that predetermine how potential losses incurred during course of contractual relationship will be distributed btwn the potentially liable parties considered void?

A

yes

63
Q

Quasi K occurs where

A

p confers benefit on D and P has reasonable expectation of compensation so ct implies a K to prevent unjust enrichment

64
Q

Lack of privity is not a defense in actions against manufacturer even when P didnt purchase goods from D if

A

P was a person whome manufacturer could have expected to use or be affected by goods

65
Q

Does implied warranty of merchantability apply to used goods?

A

yes

66
Q

Disclaimer of implied warranties must be

A

conspicuous and connected to the buyer

67
Q

SOF writing must

A

1) be in writing
2) be signed
3) contain essential elements of the deal

68
Q

SOF suretyship

A

SOF only applies if promisor is merely a surety or guarantor, receives no direct benefit and is liable only if the debtor defaults; does not apply to deed if grantee assumes grantor’s existing mortgage

69
Q

VA SOF also includes

A

1) promise to pay a debt incurred during infancy or ratification of a K during infancy after reaching majority

2) executor’s promise to pay a debt of an estate w the executor’s own money

3) real estate brokerage K

4) promise to lend money or extend credit of $25,000 or more

69
Q

Parol evidence rule

A

prevents introduction of prior extrinsic evidence that contradicts terms of a written K

70
Q

K is integrated if

A

parties intended writing to be their final agreement

71
Q

Partial integration: if writing sets forth only some terms, then parties are permitted to introduce supplementary extrinsic evidence of other terms that

A

are consistent w the writing

72
Q

What determines whether there is a total, partial or no integration

A

intent of parties

73
Q

UCC assumption regarding PER

A

assumes written K is only a partial integration and allows almost any outside term

74
Q

WHen is PER inapplicable?

A

when communication occurs after the executionof the written K and when parties are

  1. raising a defense to formation
  2. Raising a defense to enforcement
  3. Proving condition precedent to existence of the K
  4. Interpreting/clarifyin ambiguity in K
  5. UCC: supplementng even apparently unambiguous terms by evidence of trade usage or course of dealing
75
Q

Ambiguities in a K are resolved against

A

the drafter

76
Q

Anticipatory repudiation

A

promisor repudiates before time of performance is due–must be clear and unequivocal through words or acts

77
Q

Can repudiation be retracted?

A

yes until promisee acts in reliance on repudiation, accepts repudiation, or commences action for breach of K

78
Q

UCC anticipatory repudiation occurs where

A

there has been an unequivocal refusal of buyer/seller to perform or when reasonable grounds for insecurity arise and the other party fails to provide adequate assurances within reasonable time (not to exceed 30 days)

79
Q

A party can demand assurances if

A

reasonable grounds for insecurity about other part’s ability to perform

Demand must be in writing

80
Q

Failure to provide adequate assurances within ___ days constitutes repudiation

A

30 days

81
Q

UCC breach of warranty damages

A

difference btwn value of goods accepted and value of goods as warranted

82
Q

Liquidated damages and penalties are

A

damages stipulated by the parties to the K as a reasonable estimation of actual damages to be recovered in the event of a breach

83
Q

Liquidated damages clause is enforceable if

A

-parties intended to agree in advance to damages that might arise from breach

-stipulated amount was reasonable at time of K, bearing some relation to damages that might be sustained; and

-actual damges would be uncertain in amount or difficult to prove

84
Q

Specific performance in real property may be granted where

A

property is considered unique

85
Q

specific p may be granted in UCC where

A

goods are rare or unique

86
Q

Unclean hands/laches defense to specific p

A

prejudicial delay in bringing action or nonbreaching party guilty of some wrongdoing in the transaction

87
Q

Specific P may be granted where

A

terms are sufficiently definite and no adequate remedy at law…doubts resolved in favor of granting specific p

88
Q

Non-compete clauses

A

not favored; not allowed for low-wage employees; plaintiff must show reasonableness:

-no greater than necessary to protect legit interest of biz

-not unduly harsh or oppressive;

-not against public policy

89
Q

If buyer incorrectly claims that the goods are non-conforming, buyer has a duty to

A

accept the goods…failyre to do so constitutes a wrongful rejection

90
Q

If seller delivers nonconforming goods, risk of loss is on

A

seller until buyer accepts or there is cure

91
Q

if buyer breaches/repudiates after goods have been identified but before risk of loss shifts, then risk immediately shifts to

A

buyer

92
Q

If goods are damaged/destroyed and there is no breach, risk of loss is on seller until

A

he satisfies delivery obligations

93
Q

Shipment K risk of loss passes to buyer when

A

seller gives possession of the goods to the carrier and makes proper contract for their shipment

94
Q

Destination K

A

risk of loss passes to buyer when seller tenders goods at the place specified in K

95
Q

Express Warranties

A

any promise, affirmation, description by seller concerning the goods becomes apart of the basis of a bargain that the goods shall conform to the affirmation or promise

96
Q

Exception to Implied Warranty of Fitness for Particular Purpose

A

If buyer before entering the K has examined the goods as fully as desired or has refused to examine the goods, there is no implied warranty w regard to defects which an examination ought in the circumstances have revealed

97
Q

IS a provision that disclaims “any warranties whether express or implied” a valid disclaimer of an implied warranty?

A

No, not legally valid because it is not conspicuous and does not incliude terms “merchantability” “as is” or “without warranties”

98
Q

What happens when, in sale btwn merchants, a merchant’s acceptance includes terms that are inconsistent with offeror’s offer?

A

Terms are knocked out and replaced with UCC gap filling provisions

Lexbar Cards (19 decks)

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