Contracts II Flashcards
Unilateral v. Mutual mistake doctrine
Unilaterial mistake is done by one party - there is no relief; Mutual mistake is a mistake shared by both parties- no contract was formed at all, or the contract should be subject to either recission (cancellation) or reformation (re-writing by the court)
Meaning of Basic Assumption
If the assumption is a central part of the bargain it is basic.
When can a unilaterial mistake allows one avoid a contract
The party must prove that: (1) enforcement od the contract would be unconscionable or (2) the other party party KNEW or SHOULD HAVE KNOWN of the mistake or somehow was at fault for creating the mistake
Mistake
Mistake as to the facts as they existed just prior to the contract
What is a condition precedent
An event that must occur BEFORE performance under a contract.
What is a condition subsequent
An event with Discharge duties after it becomes absolute.
When can a party who is owed a condition force the other party to perform?
A party to whom a duty is owed must prove the occurrence of all conditions precedent to that duty in order to compel the party owing that duty to perfrom or to show the latter has breached by not performing.
When a duty is deemed to be the subject of a condition subsequent . . .
it is the party owing the duty who must bear the burden of proving that the condition has occured discharging him
A concurrent condition is what?
A particular type of condition precedent which exists only when the parties to a contract are to exchange PERFORMANCE at the SAME TIME
What is the difference between express and constructive conditions
Express conditions - any conditions on which the parties agree stated or implied from conduct.
Constructive Condition - not one agreed upon by the parties by the court imposes as a matter of law in order to ensure fairness.
What is a condition implied in fact
An express condition, implied by the parties action in the contract
What is a condition implied in law
Constructive condition - made by the courts to ensure fairness
What is a promise in the context of a condition.
An act. If the act is a condition to the DUTY of the other party, than non-performance will discharge the duty; if the contract is in reference to a PROMISE by him to do an act then non-performance will be a breach entitiling damages.
Is strict compliance necessary with an express condition?
Yes, ordinarily it is. Unless it promotes a forfeiture.
When is concurrent conditions used?
Each party must be both an ability and willingness to perform, each parties duty to perfrom is constructively condition upon the others manifestation of an ability and willingness to perform
What is the meaning of Tender
It is to OFFER performance to the other party. He must perform or offer to perform with the ability to do so.
What is an Assignment?
An assignment is a present transfer of a party’s already-existing rights under a contract
What are the rights of the obligor
The Assignee takes subject to any defenses which could have been asserted by the obligor against the assinor
What is a delegation?
Delegation is a present transfer of a party’s already-existing duties under a contract.
What is a third party beneficiary?
A person who is not a party to the contract becomes a 3rd Party Beneficiary if the parties to the contract intend to confer a benefit to that person
Right to sue?
A 3rd PArty Beneficiary has the right to sue; an incidental beneficiary may not sue
What is an incidental beneficiary
One who benefits by perfromance but the original partoes did not intent to confer a benefit.
When does a party vest?
The power to modify or discharge the contract terminates when the third party beneficiary’s rights have VESTED.
When does the vesting occur?
Vesting occurs when before the beneficiary receives notice of the modification, the beneficiary either (1) change her position in justifiable reliance on the contract; (2) brings suit on the contract or (3) manifests assents to it.
