Contracts II

Question 1

Unilateral v. Mutual mistake doctrine

Answer 1

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)

Question 2

Meaning of Basic Assumption

Answer 2

If the assumption is a central part of the bargain it is basic.

Question 3

When can a unilaterial mistake allows one avoid a contract

Answer 3

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

Question 4

Mistake

Answer 4

Mistake as to the facts as they existed just prior to the contract

Question 5

What is a condition precedent

Answer 5

An event that must occur BEFORE performance under a contract.

Question 6

What is a condition subsequent

Answer 6

An event with Discharge duties after it becomes absolute.

Question 7

When can a party who is owed a condition force the other party to perform?

Answer 7

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.

Question 8

When a duty is deemed to be the subject of a condition subsequent . . .

Answer 8

it is the party owing the duty who must bear the burden of proving that the condition has occured discharging him

Question 9

A concurrent condition is what?

Answer 9

A particular type of condition precedent which exists only when the parties to a contract are to exchange PERFORMANCE at the SAME TIME

Question 10

What is the difference between express and constructive conditions

Answer 10

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.

Question 11

What is a condition implied in fact

Answer 11

An express condition, implied by the parties action in the contract

Question 12

What is a condition implied in law

Answer 12

Constructive condition - made by the courts to ensure fairness

Question 13

What is a promise in the context of a condition.

Answer 13

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.

Question 14

Is strict compliance necessary with an express condition?

Answer 14

Yes, ordinarily it is. Unless it promotes a forfeiture.

Question 15

When is concurrent conditions used?

Answer 15

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

Question 16

What is the meaning of Tender

Answer 16

It is to OFFER performance to the other party. He must perform or offer to perform with the ability to do so.

Question 17

What is an Assignment?

Answer 17

An assignment is a present transfer of a party’s already-existing rights under a contract

Question 18

What are the rights of the obligor

Answer 18

The Assignee takes subject to any defenses which could have been asserted by the obligor against the assinor

Question 19

What is a delegation?

Answer 19

Delegation is a present transfer of a party’s already-existing duties under a contract.

Question 20

What is a third party beneficiary?

Answer 20

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

Question 21

Right to sue?

Answer 21

A 3rd PArty Beneficiary has the right to sue; an incidental beneficiary may not sue

Question 22

What is an incidental beneficiary

Answer 22

One who benefits by perfromance but the original partoes did not intent to confer a benefit.

Question 23

When does a party vest?

Answer 23

The power to modify or discharge the contract terminates when the third party beneficiary’s rights have VESTED.

Question 24

When does the vesting occur?

Answer 24

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.

Question 25

Assignments and delegations

Answer 25

When a party to an existing contract transfers to a third person his rights under the contract he has made an assignment;

When a third party transfers his duties under the contract he has made a delegation

Question 26

What is creditor beneficiary

Answer 26

Creditor beneficiary: Not a gift then creditor;

Question 27

What is a donee beneficiary

Answer 27

Promisor entering the contract conferring a gift