DAY 2

Question 1

When may acceptance control under 2-207(2)

Answer 1

When both parties are merchants; the new term does not materially alter the deal; the initial offer did not expressly limit acceptance to its terms and; the offeror does not object within a reasonable time to the new term

Question 2

When is the defense of impracticability available?

Answer 2

1) if performance becomes illegal after the contract is made; 2) if the specific subject matter of the contract is destroyed; 3) if in a personal services contract the performing party dies or becomes incapacitated; 4) if performance becomes impracticable

Question 3

What happens if the services can be delegated?

Answer 3

If the contract is to perform services that can be delegated, it is not discharged by the death or incapacity of the party who has to perform the services

Question 4

What are the elements of impracticability?

Answer 4

1) an unforeseeable event has occurred; 2) non-occurrence of the event was a basic assumption on which the contract was made; 3) the party seeking discharge is not at fault

Question 5

What is the doctrine of frustration of purpose?

Answer 5

Applies when unexpected events arise that destroy one party’s purpose in entering into the contract, even if performance of the contract is not rendered impossible.

Question 6

What is an intended beneficiary?

Answer 6

One to whom the promisee wishes to make a gift of the promised performance or to satisfy an obligation to pay money owed by the promisee to the beneficiary

Question 7

Is intent required for an intended beneficiary?

Answer 7

Yes, the promisee must have an intention (explicit or implicit) to benefit the third party or the beneficiary is incidental

Question 8

What is an incidental beneficiary?

Answer 8

One who benefits from a contract even though there is not contractual intent to benefit that person

Question 9

Does an incidental beneficiary have any rights to enforce the contract?

Answer 9

No

Question 10

What must the third party establish in order to bring a breach of a third party beneficiary contract?

Answer 10

1) A contract between A and B; 2) The clear or manifest intent of A and B that the contract primarily and directly benefit the third party; 3) A breach of the contract by either A or B; 4) Damages to the third party resulting from the breach

Question 11

When do the rights of a beneficiary vest?

Answer 11

The rights of an intended beneficiary vest when the beneficiary: 1) Detrimentally relies on the rights created; 2) manifests assent to the contract at one of the parties request; or 3) files a lawsuit to enforce the contract

Question 12

What is an assignment?

Answer 12

An assignment is the transfer of rights under a contract

Question 13

What is a delegation?

Answer 13

A delegation is the transfer of duties and obligations under a contract

Question 14

What rights do the assignee have?

Answer 14

An assignee takes all of the rights of the assignor as the contract stands at the time of assignment, but she takes subject to any defenses that could be raised against the assignor.

Question 15

When obligations are delegated is the delegator released from liability?

Answer 15

No, the delegator is not released from liability and recovery can be had against the delegator if the delegatee does not perform

Question 16

What is a novation?

Answer 16

A novation is the substitution of a new contract for an old one when the original obligor is released from his promises under the original agreement

Question 17

What is required under the Statute of Frauds?

Answer 17

Contracts that within the SOF are unenforceable unless they are evidenced by a writing that is signed by the party to be charged and contains all the essential elements of the contract

Question 18

What types of contracts are covered within the SOF?

Answer 18

Marriage; Suretyship; One year; UCC sale of goods; Real property sale of land

Question 19

What is a sufficient writing for a sale of goods?

Answer 19

it must indicate that a contract has been made, identify the parties, contain a quantity, and be signed by the party to be charged

Question 20

What are the exceptions; when a writing is not required?

Answer 20

For specially manufactured goods; partial payment; receipt and acceptance; judicial admission; or failure to respond to a memo when both parties are merchants

Question 21

What is the parol evidence rule?

Answer 21

It generally prevents a party to a written contract from presenting prior extrinsic evidence that contradicts the terms of the contract as written

Question 22

What is the first step under parol evidence?

Answer 22

Determine whether the parties writing is integrated

Question 23

What does a writing being integrated mean?

Answer 23

Did the parties intend it to be their final agreement

Question 24

Does parol evidence only apply to an integrated agreement?

Answer 24

Yes

Question 25

What is total or complete integration?

Answer 25

If the writing completely expresses all of the terms of the parties agreement then it is totally integrated and the parties cannot introduce any extrinsic evidence oral or written of prior or contemporaneous understandings or negotiations

Question 26

What is partial integration?

Answer 26

If the writing sets for the parties agreement about some terms but not all terms.

Question 27

If a agreement is partially integrated what can the parties do?

Answer 27

The parties are permitted to introduce supplementary extrinsic evidence oral or written of other terms as longs as the evidence is consistent with the writing but not if the evidence contradicts the terms of the writing

Question 28

What is the common law four corners rule?

Answer 28

In determining whether the parties intended the written contract to be the final and complete expression of their agreement, a court was only permitted to look to the writing itself for evidence of intent

Question 29

What does the second restatement say about parol evidence?

Answer 29

if under the circumstances an extrinsic term of an agreement would naturally be omitted from a writing then that term can be introduced so long as it does not contradict the writing

Question 30

What is the UCC parol evidence rule?

Answer 30

UCC presumes that a written contract is only a partial integration of the parties agreement and therefore it lets in any outside terms unless a court concludes that they with certainly would have been included in the written contract.

Question 31

What is a condition?

Answer 31

A future and uncertain event that must take place before a party’s contractual rights or obligations are created, destroyed, or enlarged.

Question 32

What are the two types of conditions?

Answer 32

Express and Implied

Question 33

What is an express condition?

Answer 33

The words are expressed in the contract

Question 34

What is an implied condition?

Answer 34

Conditions that are deemed to be part of the contract because the nature of the agreement suggests that the parties truly intended the condition but failed to expressly include it