Day 1

Question 1

What is a Unilateral Mistake

Answer 1

When only one of the parties is mistaken as to an essential element of the contract, either party can generally enforce the contract on its terms

Question 2

Under a Unilateral Mistake can either party void the contract?

Answer 2

Yes, the mistaken party can void the contract if the mistaken party did not bear the risk of mistake and either: the mistake would make enforcement of the contract unconscionable; or the non mistaken party: failed to disclose the mistake despite knowing or having reason to know that the other party was mistaken or having a duty to disclose the fact about which the other party was mistaken; or caused the mistake

Question 3

What must occur for a rescission of a unilateral mistake

Answer 3

There must be an absence of serious prejudice to the other party

Question 4

What is a Mutual Mistake

Answer 4

Occurs when both parties are mistaken to an essential element of the contract

Question 5

What is the test for Mutual mistake

Answer 5

There must be a substantial difference between the deal as it was contemplated and the actual deal, with no intent by the parties to take a risk on that element of the contract

Question 6

When is reformation for a mistake available?

Answer 6

When: there is a prior agreement between the parties; there was an agreement by the parties to put that prior agreement into writing; and as a result of a mistake there is a difference between the prior agreement and the writing

Question 7

What is misunderstanding?

Answer 7

Occurs when both parties believe that they are agreeing to the same material terms, but in fact they agree to different terms

Question 8

What is misrepresentation?

Answer 8

an assertion that is contrary to the existing facts

Question 9

What is fraudulent misrepresentation?

Answer 9

Fraud exists if the misrepresentation is made: knowingly; without confidence in the assertion; and when the person making the assertion knows that no basis exists for the assertion

Question 10

What is non disclosure?

Answer 10

Nondisclosure of a known fact is tantamount to an assertion that the fact does not exist, if the party not disclosing the fact knows that:
disclosure is necessary to prevent a previous assertion from being a misrepresentation or fraudulent;
disclosure would correct a mistake of the other party as to a basic assumption and the failure to disclose would constitute lack of good faith and fair dealing;
Disclosure would correct a mistake of the other party as to the contents or effect of a writing evidenced in their agreement or the other party is entitled to know the fact because of a confidential or fiduciary relationship

Question 11

What is fraud in the execution?

Answer 11

occurs when the fraudulent misrepresentation prevents a party from knowing the character or essential terms of the transaction

this contract is treated as void

Question 12

What is fraud in the inducement?

Answer 12

occurs when a fraudulent misrepresentation is used to induce another to enter into a contract

this contract is treated as voidable

Question 13

What is undue influence?

Answer 13

the unfair persuasion of a party to assent to a contract

Question 14

What is duress?

Answer 14

an improper threat that deprives a party of a meaningful choice

Question 15

What is an implied in fact contract?

Answer 15

when words express the intent of the parties the contract is an express contract

Question 16

What is an implied in law (quasi) contracts

Answer 16

when a plaintiff confers a benefit on a defendant and the plaintiff has a reasonable expectation of compensation allowing the defendant to retain the benefit without compensating the plaintiff would be unjust

Question 17

when is restitution allowed under an implied in law contract

Answer 17

the court may allow restitutionary recovery if the plaintiff has conferred a measurable benefit on the defendant; and the plaintiff acted without gratuitous intent and it would be unfair to let the defendant retain the benefit because either the defendant had an opportunity to decline the benefit but knowingly accepted it or the plaintiff had a reasonable excuse for not giving the defendant such opportunity

Question 18

Under the UCC what is an express warranty?

Answer 18

any promise, affirmation, description, or sample that is part of the basis of the bargain is an express warranty, unless it is merely the sellers opinion or commendation of the value of the goods

Question 19

Implied warranty of merchantability?

Answer 19

a warranty is implied whenever the seller is a merchant

Question 20

what is required for implied warranty of merchantability ?

Answer 20

to be merchantable goods must be fit for their ordinary purpose and pass without objection in the trade under the contract description

Question 21

implied warranty of fitness for a particular purpose?

Answer 21

a warranty that the goods are fit for a particular purpose is implied whenever the seller has reason to know that the buyer has particular use for the goods and the buyer is relying upon the sellers skill to select the goods