DAY 2 Flashcards
When may acceptance control under 2-207(2)
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
When is the defense of impracticability available?
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
What happens if the services can be delegated?
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
What are the elements of impracticability?
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
What is the doctrine of frustration of purpose?
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.
What is an intended beneficiary?
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
Is intent required for an intended beneficiary?
Yes, the promisee must have an intention (explicit or implicit) to benefit the third party or the beneficiary is incidental
What is an incidental beneficiary?
One who benefits from a contract even though there is not contractual intent to benefit that person
Does an incidental beneficiary have any rights to enforce the contract?
No
What must the third party establish in order to bring a breach of a third party beneficiary contract?
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
When do the rights of a beneficiary vest?
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
What is an assignment?
An assignment is the transfer of rights under a contract
What is a delegation?
A delegation is the transfer of duties and obligations under a contract
What rights do the assignee have?
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.
When obligations are delegated is the delegator released from liability?
No, the delegator is not released from liability and recovery can be had against the delegator if the delegatee does not perform
What is a novation?
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
What is required under the Statute of Frauds?
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
What types of contracts are covered within the SOF?
Marriage; Suretyship; One year; UCC sale of goods; Real property sale of land
What is a sufficient writing for a sale of goods?
it must indicate that a contract has been made, identify the parties, contain a quantity, and be signed by the party to be charged
What are the exceptions; when a writing is not required?
For specially manufactured goods; partial payment; receipt and acceptance; judicial admission; or failure to respond to a memo when both parties are merchants
What is the parol evidence rule?
It generally prevents a party to a written contract from presenting prior extrinsic evidence that contradicts the terms of the contract as written
What is the first step under parol evidence?
Determine whether the parties writing is integrated
What does a writing being integrated mean?
Did the parties intend it to be their final agreement
Does parol evidence only apply to an integrated agreement?
Yes
What is total or complete integration?
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
What is partial integration?
If the writing sets for the parties agreement about some terms but not all terms.
If a agreement is partially integrated what can the parties do?
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
What is the common law four corners rule?
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
What does the second restatement say about parol evidence?
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
What is the UCC parol evidence rule?
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.
What is a condition?
A future and uncertain event that must take place before a party’s contractual rights or obligations are created, destroyed, or enlarged.
What are the two types of conditions?
Express and Implied
What is an express condition?
The words are expressed in the contract
What is an implied condition?
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
