Contracts Review X-tra Flashcards
Can an Offer be Terminated at anytime ?
Yes, It can be Terminated At ANY time
- Unless It’s a Firm or Irrevocable
How may an Offer be Terminated?
By ANY Reasonable means
What is a Constructive Revocation?
Reliable Info of Inconsistent Actions by Offeror
- that are communicated to Offeree or has reason to know
SOF / Confirmation Memo between Merchants
Merchant’s Exception
One has reason to know its contents
- Receiving party must object in writing within 10 days
- if not contract is enforceable against the receiving party even if he hasn’t not signed it.
Does SOF apply to goods that have been accepted?
NO, the Statute of Frauds does not apply to a contract where the goods have been received and accepted
- even if otherwise that would have been a defense
Duress vs. Undue Influence
Duress = Improper Threat
Undue Influence = unfair persuasion of a party
Common Law Modifications - Do they have to be in Writing ?
NO they don’t
SOF - Surety Exception - when must the Surety pay even if not in writing?
If Main reason is the surety’s own economic benefit
- Also : Indemnity Contracts (hold another harmless)
Unilateral Mistake - who can enforce? Can it be voided?
Only One Party Mistaken to an essential element
Either party can generally enforce the contract
- the mistaken party can void the contract if the he did not bear the risk of the mistake (didn’t cause the mistake) but if he did make the mistake then can’t void it (stuck w/ it!)
When it appears that there’s no contract - look for detrimental reliance and …
Promissory Estoppel
Mailbox Rule - when rejection sent first
Win the Race - Whichever gets there first controls
Mailbox Rule for Options Contracts
Does not apply !
SOF - Surety = Must be in writing except
When doing it for the Surety’s own benefit
Father promises on the phone to pay loan debt of law school in three years when loan due
- can she enforce it?
Cannot be performed within one year - falls w/in SOF
- unenforceable unless made in writing.
Father’s promise could not have been completed within a year of its making bc promised to pay 3 yrs
- Unenforceable -
Contract for Buying a house -
Must what ? But exception ?
SOF writing required - real estate
BUT -part performance - subsequent acts by either party that show the existence of the contract may make it enforceable: PIP (2/3)
Possession, Improve, Payment
Major difference in Bargaining Power or Experience and trying to take her to the cleaners - defense ??
Unconscionability
- He’s an asshole ! -
Adjudicated Incompetent - as a defense.
- The seller doesn’t know
Does NOT Matter that the seller doesn’t know
- can’ t enforce contract (like a minor is incompetent)
Unlike the Implied Warranty of Merchantability,
Implied Warranties of Fitness for a Particular Purpose may be…?
Excluded by General Language
BUT MUST be in writing and conspicuous
(can’t say “as is” or disclaim orally)
Defense of Impracticability - When does it not apply to some seemingly impossible performance due to technology ?
If a party assumes the risk of an event happening that makes performance impracticable, then
> Defense of impracticability will not apply <
- the manufacturer knew at the time of contracting that the process had not yet been perfected + assumed the risk that it might never successfully perfect the new method, and that the order would be impossible to fill.
Impracticability Elements
(i) an unforeseen event occurs; (ii) the nonoccurrence of which was a basic assumption on which the contract was based; and (iii) the party seeking discharge is not at fault
- bad weather causes a shortage of materials / company not at fault for weather can use defense
Parol Evidence - something they must do - condition precedent - can they offer it
Yes - to prove a condition precedent to the existence of the contract.
EX: Farmer agreed to sell the chickens to the nutritionist on the condition that she build a coop
Express conditions if the guy offers substantial compliance - is that good enough ?
NO - Express conditions specified in the contract. Express conditions must be complied with fully unless excused; substantial compliance will not suffice.
Delegation of duties - if it’s delegated can the party sue the original servicer ?
YES - because a delegation of duties does not absolve the original service provider of its contractual liability.
Expectation Damages Formula
Construction costs + expected profit - money saved by selling
Restitution instead of Expectation Damages when?
In cases where the non-breaching party has partially performed a BELOW MARKET PRICE (discounted)
- Thus the company may recover the benefit conferred upon the developer as measured by the amount they would have had to pay to get the same elsewhere
(Otherwise, the breaching party would profit from its breach)
