Contracts and Sales NY Distinctions

Question 1

Unsolicited Goods

Answer 1

Any unsolicited and voluntarily sent merchandise is an unconditional gift, NOT an offer. Recipient can use/dispose of them as she sees fit.

Question 2

Revocation of Unilateral Contract

Answer 2

An offeror can revoke an offer to form a unilateral contract at any time UNTIL the offeree completes performance. Unlike common law, beginning performance does not make the offer irrevocable.

Question 3

Irrevocable offers in NY

Answer 3

An offer in writing + signed by offeror + specifies the offer is revocable = irrevocable offer
No need for consideration.

Question 4

Promise of Reward in NY

Answer 4

A promise to pay a reward is ONLY enforceable if the promise is:
(1) in writing OR
(2) published
(No oral offers)

Question 5

Consideration for Real Property

Answer 5

A promise or warranty written into a deed or conveyance of interest in real property need NOT be supported by consideration.

Question 6

Promises exchanged for past consideration

Answer 6

In NY a promise based on past consideration is valid IF:

(1) expressed in writing AND signed by promisor
(2) consideration was actually given or performed, AND
(3) consideration would be valid but-for the time it was performed

Question 7

Infancy in NY

Answer 7

Contracts to people under 18yo are voidable. But following contracts are NOT voidable for infancy:

(1) Contracts involving the marital home
(2) Contracts for artistic or athletic services that Supreme Court or Surrogates Court have approved
(3) Student-loan contracts for those 16yo
(4) Life-insurance contracts for those 14 and 1/2 or older

Question 8

Usurious Contracts

Answer 8

Consumer and personal loans with interest rate of 16% or more are void.

Question 9

Negligence Clauses in NY

Answer 9

Exculpatory causes are enforceable against negligence claims. NOT enforceable against gross negligence claims.
Exceptions:
(1) construction, repair or maintenance
(2) agreements exempting owners of swimming pools, gyms, and places of public amusement or recreation when ∆ charged a fee

Question 10

Non-compete provisions in employment agreements

Answer 10

Enforceable only if:

(1) reasonable in time and geographic scope
(2) necessary to protect employer’s legitimate interest
(3) not harmful to the general public, AND
(4) not unreasonably burdensome on employee

Question 11

Does NY allow “pay-if-paid” provisions in a contract?

Answer 11

No. Against public policy for a general contractor to use a pay-if-paid provision with a subcontractor. Interpret the payment as due in a reasonable time.

Question 12

Irrevocable assignment of rights under a contract

Answer 12

Will not be voided for lack of consideration if (1) in writing, and (2) signed by assignor.

Question 13

Additional SoF-triggering agreements in NY (beyond “M.Sour”)

Answer 13

(1) New promise to pay a debt previously discharged in bankruptcy proceedings
(2) Assignment of an insurance policy
(3) Compensation for negotiating a real estate transaction or finder’s fee (unless you hire a licensed real estate broker, auctioneer, or lawyer)
(4) Change, modify, or discharge a contract obligation involving real or personal property

Question 14

Exceptions to the duty to mitigate in NY

Answer 14

Landlord has no obligation to mitigate by re-letting an abandoned premises. Three options:

(1) landlord can do nothing and collect full rent due under lease
(2) landlord can re-let premises for tenant’s benefit. Can collect any shortfall.
(3) landlord can re-let premises for landlord’s benefit and release tenant from further liability for rent.

Question 15

When is an employment relationship an at-will relationship?

Answer 15

Presumed at-will unless there is an agreement establishing a fixed duration. Look for any ascertainable period of time. Need not be predictable or precise.

Question 16

In NY, when can an oral contract for transfer of a real estate interest become enforceable without a writing?

Answer 16

Need two out of these three things:

(1) partial or full payment
(2) substantial improvements to the property
(3) possession of the property

Question 17

Must a contract in NY state that “time is of the essence” in order to make completion on a certain date a material term?

Answer 17

Yes. Unless contract explicitly says time is of the essence, material breach will not be found. (Exception for payment of rent or other similar contracts)

Question 18

In NY, must a written agreement to change/modify a debt or obligation be supported by consideration? What is needed?

Answer 18

No. Needs to be in writing and signed by party against whom it is being enforced.

Note: Party alleging an oral modification may also be able to assert estoppel.