Contracts and Sales Flashcards
Is an agreement to agree in the future an enforceable K?
No
Terms of a K under UCC must include
only quantity
What happens if other terms are missing under UCC
UCC fills the gap
Employment Ks are presumed at will unless
K explicitly limits the situations in which an employer may terminate an employee
What must an offer contain?
words of promise, undertaking or commitment and be targeted to a number of people who could actually accept
Promise for promise is what kind of K?
bilateral
promise for an act
unilateral K
Advertsisements are only an invitation to
deal (but may qualify as an offer if sufficiently specific and limit who can accept or if associated w a stated reward
If no time is stated, offer is terminated upon
reasonable time
Offer terminating upon death of offeror
offer terminates even if oferee doesnt learn of offeror’s death until after offeree has sent what he believes to be an acceptance
Exception to offer terminating upon death
option K
Is offer terminated if illegality/destruction?
yes
Can offer be revoked before acceptance?
Yes even if it states it will be open for a specific amount of time
Revocation is not effective until
communictaed…if sent by mail not effective til received
UCC firm offer rule
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
Promissory estoppel
offer may become irrevocable where offeree detrimentally relies on offer
For all Ks offeree must have ____ of the offer when performance begins
Knowledge of the offer
Can offeror revoke once offeree has begun performance in a unilateral K?
no
Can offeror revoke once offeree has begun performance in a bilateral K?
no, commencement of performance operates as a promise to render complete performance
Revocation of general offers (to large number of people)
revocable only by notice given in at least same lvl of publicity as offer
Rejection by offeree occurs wherre
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
Acceptance in a bilateral K occurs where
parties exchange promises that render both enforceable
acceptance in a unilateral K
promise to do something by one party in return for an act of the other party
Unless offeror specifies, offeree can accept by
any reasonably manner
Silence as acceptance?
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
Nonconforming goods shipped constitutes
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
Mailbox rule: acceptance
acceptance is effective when sent, not receipt, unless K provides otherwise
Mailbox rule: rejection following acceptance
Acceptance will control even if offeror receives rejection first
Mailbox rule: acceptance following rejection
mailbox rule does not apply;
first one received will prevail; offeror need not read the received communication
Mailbox rule: revocation is effective upon
recipt
Does mailbox rule apply to options and other irrevocable offers?
no, acceptance must be received by offeror by a certain date or before offer expires
UCC acceptance containing additional or different terms are generally treated as
acceptance
UCC acceptance with additional terms where one or both parties are not merchants
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
Additional terms in K where both parties are merchants
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
What happens if there are different terms in offer/acceptance
they nulllify eachother and ct uses article 2’s gap filiing provisions
What happens when offer and acceptance differ too much to create a K but parties begin to perform anyway
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
Does VA enforce promises to pay for past acts as consideration?
no
Executory K: is an exchange of promises adequate consideration?
yes
What is required for a K modification under UCC
good faith, no consideration necessary
Does VA recognize promissory estoppel?
No
Defense to formation Mutual Mistake
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
Unilateral mistake
one party is mistaken as to an essential element of the K, but either party can enforce K on its terms
Is unilateral mistake a basis for equitable relief?
No
Misunderstanding occurs where
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
Fraudulent misrep
knowing or reckless false assertion of fact w intent to mislead…misrep induced assent to K and other party justifiable relied,,,,
Consequence of Fraud in Factum for Misrep
K is void
Consequence of fraud in inducement in misrep
voidable
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?
No
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
No
Is K voidable if facts are cured before deceived party avoided the K
NO
Undue influence
unfair persuasion of a party to assent to a K
Damages in undue influence
restitution
Duress
improper threat that deprives party of meaningful choice
if physical compulsion = void
other instances = voidable
Infancy makes K voidable by
infant, not adult except for reasonable value of necessaries
Reasonable value of necessaries inquiry
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?
Mental illness: void/voidable
void if it makes person incompentent, voidable if not
Guardianship entered by individual under guardianship: void/voidable
void
Intoxication: void/voidable
voidable by intoxicated party if she was unable to under nature/consequences of action
Is K void if it contemplates illegal conduct?
Yes
Unconscionability, inequality must be so gross that it
shocks the conscious
Are exculpatory clause for future negligence void?
yes
Are indemnity clauses that predetermine how potential losses incurred during course of contractual relationship will be distributed btwn the potentially liable parties considered void?
yes
Quasi K occurs where
p confers benefit on D and P has reasonable expectation of compensation so ct implies a K to prevent unjust enrichment
Lack of privity is not a defense in actions against manufacturer even when P didnt purchase goods from D if
P was a person whome manufacturer could have expected to use or be affected by goods
Does implied warranty of merchantability apply to used goods?
yes
Disclaimer of implied warranties must be
conspicuous and connected to the buyer
SOF writing must
1) be in writing
2) be signed
3) contain essential elements of the deal
SOF suretyship
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
VA SOF also includes
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
Parol evidence rule
prevents introduction of prior extrinsic evidence that contradicts terms of a written K
K is integrated if
parties intended writing to be their final agreement
Partial integration: if writing sets forth only some terms, then parties are permitted to introduce supplementary extrinsic evidence of other terms that
are consistent w the writing
What determines whether there is a total, partial or no integration
intent of parties
UCC assumption regarding PER
assumes written K is only a partial integration and allows almost any outside term
WHen is PER inapplicable?
when communication occurs after the executionof the written K and when parties are
- raising a defense to formation
- Raising a defense to enforcement
- Proving condition precedent to existence of the K
- Interpreting/clarifyin ambiguity in K
- UCC: supplementng even apparently unambiguous terms by evidence of trade usage or course of dealing
Ambiguities in a K are resolved against
the drafter
Anticipatory repudiation
promisor repudiates before time of performance is due–must be clear and unequivocal through words or acts
Can repudiation be retracted?
yes until promisee acts in reliance on repudiation, accepts repudiation, or commences action for breach of K
UCC anticipatory repudiation occurs where
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)
A party can demand assurances if
reasonable grounds for insecurity about other part’s ability to perform
Demand must be in writing
Failure to provide adequate assurances within ___ days constitutes repudiation
30 days
UCC breach of warranty damages
difference btwn value of goods accepted and value of goods as warranted
Liquidated damages and penalties are
damages stipulated by the parties to the K as a reasonable estimation of actual damages to be recovered in the event of a breach
Liquidated damages clause is enforceable if
-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
Specific performance in real property may be granted where
property is considered unique
specific p may be granted in UCC where
goods are rare or unique
Unclean hands/laches defense to specific p
prejudicial delay in bringing action or nonbreaching party guilty of some wrongdoing in the transaction
Specific P may be granted where
terms are sufficiently definite and no adequate remedy at law…doubts resolved in favor of granting specific p
Non-compete clauses
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
If buyer incorrectly claims that the goods are non-conforming, buyer has a duty to
accept the goods…failyre to do so constitutes a wrongful rejection
If seller delivers nonconforming goods, risk of loss is on
seller until buyer accepts or there is cure
if buyer breaches/repudiates after goods have been identified but before risk of loss shifts, then risk immediately shifts to
buyer
If goods are damaged/destroyed and there is no breach, risk of loss is on seller until
he satisfies delivery obligations
Shipment K risk of loss passes to buyer when
seller gives possession of the goods to the carrier and makes proper contract for their shipment
Destination K
risk of loss passes to buyer when seller tenders goods at the place specified in K
Express Warranties
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
Exception to Implied Warranty of Fitness for Particular Purpose
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
IS a provision that disclaims “any warranties whether express or implied” a valid disclaimer of an implied warranty?
No, not legally valid because it is not conspicuous and does not incliude terms “merchantability” “as is” or “without warranties”
What happens when, in sale btwn merchants, a merchant’s acceptance includes terms that are inconsistent with offeror’s offer?
Terms are knocked out and replaced with UCC gap filling provisions
