Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

Contracts > Defenses > Flashcards

Defenses Flashcards

1
Q

what is lack of capacity to K based on infancy?

A

anyone under the age of 18 (minor) do not have the capacity to enter into a K binding on themselves

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

are K promises of an adult made to a minor binding?

A

ONLY as to the adult (not the child)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

when can a minor disaffirm a K?

A

any time before OR shortly after reaching the age of majority

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

if a minor chooses to disaffirm, what portion of the K is affected?

A

ALL of it (can’t partially disaffirm)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

if a minor chooses to disaffirm and they still have things that they’ve received under the K, what must they do?

A

they must return those things

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

must a minor who disaffirms return consideration that has been squandered, wasted, negligently destroyed?

A

NO

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

can disaffirmance be be implied?

A

YES (ie – minor reaches age 18 and continues to use car that was sold to him when he was 17)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

when will a minor be liable for in RESTITUTION for the value of benefits received even though they disaffirm?

A

if the K is for necessaries (items necessary for subsistence, health, education – ie: food, shelter, clothing, medical care)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

will a minor be liable in CONTRACT for value of benefits received under a K for necessaries?

A

NO (only in RESTITUTION)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

how must a minor affirm a K once they reach majority?

A

either…
1) expressly, or
2) by conduct (ie – failing to disaffirm within a reasonable time after reaching majority)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

when may mental incapacity be a defense to K enforcement?

A

when a person’s capacity is so deficient that they are incapable of understanding the nature and significance of a contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

how does a person disaffirm a K based on mental incapacity?

A

disaffirms either…
1) when they later become lucid, or
2) by a later appointed legal representative

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

are mentally incapacitated people liable in restitution for necessaries?

A

YES (just like minors)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

when may intoxication be a defense to K enforcement?

A

when a person is so intoxicated that they don’t understand the nature and significance of their promise

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

when does intoxication create a voidable promise?

A

when the other party had reason to know of the intoxication

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

are intoxicated people liable in restitution for necessaries?

A

YES (just like minors and mentally incapable)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

may a contract induced by duress or undue influence be rescinded?

A

YES (so long as it has not been affirmed)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

generally, when does duress occur?

A

when a party’s assent is procured by an improper threat

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

generally, does taking advantage of someone’s economic needs count as duress?

A

NO

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

when is there sufficient economic duress? (2 requirements)

A

when, by withholding something someone wants or needs…
1) the party threatens to commit a wrongful act that would seriously threaten the other contracting party’s property or finances, AND
2) there are no adequate means available to prevent the threatened loss (offered no choice)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

what are the elements of undue influence? (2)

A

1) undue susceptibility to pressure by one party, and
2) excessive pressure by the other party
**NOTE = usually arises when dominant party is in a confidential or caregiver relationship with influenced party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

what does the result depend on when there are two possible meanings to a term of a K?

A

depends on the parties’ awareness of the ambiguity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

when NEITHER party is aware of the ambiguity, what results?

A

there is NO contract UNLESS the parties intended the same meaning

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

when BOTH parties are aware of the ambiguity, what results?

A

there is NO contract UNLESS the parties intended the same meaning

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
when ONE party is aware of the ambiguity and the other is NOT, what results?
there IS a binding contract bases on what the IGNORANT party reasonably believed to be the meaning of the ambiguous terms
26
when is one party "aware" for purposes of ambiguity?
when they knew or should have known of the ambiguity
27
will a contract in which BOTH parties are mistaken about an EXISTING fact relating to the K be voidable? (doctrine of mutual mistake)
only if... 1) it's being voided by the ADVERSELY affected party, 2) mistake concerns a basic assumption upon which the K was made, 3) mistake has a material effect on the agreed upon exchange, AND 4) the party seeking avoidance did NOT assume the risk of the mistake
28
when does a party "bear the risk" of a mistake? (2 situations)
when one party is in a position to better know the risks than the other party OR where the parties knew that their assumption was doubtful
29
is mutual mistake as to VALUE a defense to K enforcement?
NO (both parties assume the risk that their assumptions as to value may be wrong)
30
generally, if only ONE of the parties is mistaken as to an existing fact, will this make the contract voidable?
NO (K still enforceable)
31
in what circumstance is a unilaterally mistaken K nonetheless voidable by the MISTAKEN party?
when the NONMISTAKEN party knew or had reason to know of the mistake made by the other party (obvious)
32
to void a K based on unilateral mistake, what is required? (2 showings)
1) the mistake had a material effect on the exchange, and 2) the mistaken party had not borne the risk
33
what is the effect of a mistake in the transmission of an offer or acceptance by an intermediary?
(majority view) the message as TRANSMITTED is operative UNLESS the other party knew/should have known of the mistake
34
when is a contract induced by fraudulent misrepresentation voidable by the innocent party?
if they *justifiably relied* on the fraudulent misrepresentation
35
what is fraudulent misrepresentation?
*inducing* a party to enter into a contract by asserting info they *know* is untrue
36
when is a contract based on misrepresentation (*regardless* if its fraudulent) voidable by an innocent party? (2 rqmts)
voidable if... 1) innocent party justifiably relied on the misrepresentation, and 2) the misrepresentation was **material**
37
what makes a misrepresentation "material"?
material if... 1) it would induce a **reasonable** person to agree (*regardless* of maker's knowledge), or 2) the maker *knows* that for some special reason it is likely to induce the **particular** person to agree -- even if a reasonable person would not agree
38
true or false: a party cannot recover for relying on misrep if they did not read the contract or exercise care in reading it.
FALSE (doesn't necessarily mean that the party is unjustified in relying on misrep)
39
when is a partys' reliance on a misrep NOT justifiable?
when the reliance was unreasonable under the circumstances
40
what are an innocent party's options for recovery of a K based on misrep?
1) they can take affirmative action by rescinding the agreement 2) they can pursue all available remedies for breach of contract
41
when is a promise NOT sufficient consideration? (what does it lack?)
when it lacks the elements of bargain or legal detriment (no K will exist!)
42
true or false: generally, if the consideration or subject matter of a K is illegal, the contract is VOID.
TRUE
43
what are the three exceptions to the rule that Ks with illegal consideration/subject matter are void?
1) plaintiff is unaware of the illegality while the defendant knows of the legality 2) parties are not equally culpable 3) illegality is a failure to obtain a license when the license is for revenue-raising purposes not for protection of the public
44
true or false: if a K's underlying purpose is illegal, the contract is VOID
FALSE (merely VOIDABLE)
45
who may void a K whose underlying purpose is illegal? (2 options)
a party who was... 1) unaware of the purpose, or 2) aware but did not facilitate the purpose AND the purpose does not involve serious moral turpitude
46
what is the doctrine of "unconscionability"?
allows a court to modify or refuse to enforce an entire K or a provision in it to avoid "unfair terms" (usually due to some unfairness in the bargaining process)
47
true or false: unfair price alone is a ground for unconscionability.
FALSE
48
what are the three elements to unconscionability?
1) unfair surprise 2) oppressive terms 3) evaluated based on the circumstances when the K was formed (not hindsight)
49
what are some examples of procedural unconscionability in Ks?
- inconspicuous risk shifting provisions - contracts of adhesion (take it or leave it) - exculpatory clauses (absolving liability) - limitations on remedies
50
what are a court's options if they find that a K clause is unconscionable?
court may... 1) *refuse to enforce* the entire K 2) *enforce the remainder* of the K **without** the unconscionable clause 3) *limit the application* of any clause so as to avoid an unconscionable **result**
51
what agreements are covered by the statute of frauds? (require signed writing)
(MYLEGS) Ks where **Marriage** is consideration Ks not possible to complete in one **Year** Ks for sale of interests in **Land** **Executor** promises to pay estate debts **Goods** for 500$ or more **Sureties** (promises to pay the debt of another)**
52
how does one determine if a K can be performed within one year (SoF)? (2 considerations)
1) look at the K's *terms*, and 2) run length of time from date of *agreement* (not the date of performance)
53
is a promise to work "until I die" within the statute of frauds?
NO (person can die within one year)
54
what types of Ks are included in the "interest in land sales" category of the SoF?
- any sale of real property - leases for more than one year - easements of more than one year - mortgages/other security liens - fixtures - minerals or structures if they are to be severed by the buyer
55
true or false: Ks to build a building or to find a buyer for a seller do NOT create an interest in land subject to SoF.
TRUE
56
true or false: full performance by the seller on a land sale K will take the K OUT of the statute of frauds.
TRUE
56
57
what is the equal dignity rule? (SoF)
authorization to enter into a K on someone else's behalf MUST be in writing only if the *underlying deal* would have been subject to the SoF
58
true or false: to fall within the statute of frauds, an executor's promise to pay the estate's debts must come out of their PERSONAL funds.
TRUE (not within SoF if the promise to use the estate's assets to pay the debt)
58
true or false: sale of goods Ks for 500$+ are sufficient EVEN if the writing omits or incorrectly states a term.
TRUE
59
true or false: a K for sale of goods over 500$ that omits/incorrectly states a term can be enforceable BEYOND the quantity of goods shown in that writing.
FALSE (quantity of goods in the writing is the CONTROLLING amount)
60
what party must sign a writing for the SoF to be satisfied (contract enforceable)?
writing must be signed by the party being sued
61
when is a K for sale of goods over $500 NOT required to be in writing (not within SoF)? (SWAP)
**S**pecially manufactured goods **W**ritten confirmation by a merchant **A**dmission in court/pleadings **P**aid for or accepted (performance)
62
when is a suretyship NOT within the SoF? (no writing required)
when the main purpose or leading object of the promisor is to serve a pecuniary interest of their *OWN*
63
what is the effect of noncompliance with the statute of frauds?
party being sued can render the K unenforceable (affirmative defense)
64
true or false: a written K can be modified orally.
TRUE
65
true or false: if a K modification puts the now modified K *within* the SoF, the modification MUST be in writing.
TRUE **EXAMPLE = K for sale of goods less than 500$ is modified to be more than 500$ (must now be in writing)
66
true or false: at *common law*, if a written K states that the K must be modified by signed writing, parties nonetheless CAN modify the K orally
TRUE
67
true or false: under the *UCC*, if written K states that the K must be modified by a signed writing, parties nonetheless CAN modify the K orally
FALSE (clauses prohibiting oral modifications ARE permitted under the UCC)
68
what is the effect of an oral modification to a K that validly requires only written modifications?
oral modification doesn't technically modify the K BUT it does act as a waiver to SoF defense (ie -- other party materially changes position in reliance on oral modification)
69
when may a party retract their waiver of SoF defense (due to prior oral mod)? (2 rqmts)
may retract if... 1) the waiver affects an UNPERFORMED part of the K (no detrimental reliance on oral mod yet), and 2) party seeking to retract NOTIFIES the other party that strict performance of the original (unwaived) terms is required
70
true or false: if a seller conveys the property to a buyer (fully perform), the seller can enforce the buyer's ORAL promise to pay.
TRUE
71
when will an *oral* K for sale of land that's been *partially* performed nonetheless be enforceable without a writing? (doctrine of part performance, need 2/3)
when the buyer has done at least 2 of the following 3 things: 1) payment in whole or in part 2) possession of prop 3) valuable improvements to prop
72
a buyer of interest in land trying to enforce an oral K based on part performance can only seek *what* kind of remedy?
specific performance ONLY (equitable remedy; no damages)
73
true or false: an oral K that cannot be completed within one year but that has been FULLY performed by one party is enforceable.
TRUE
74
when will part performance of a sale of goods K take the K out of the SoF? (2 situations)
part performance enough if either... 1) the goods have been specially manufactured, or 2) the goods have been either paid for accepted
75
what is the extent of a sale of goods K's enforcement where there's only *partial* payment/acceptance?
enforceable only to the extent of the partial payment or acceptance **TLDR = can't force party to pay for more goods than they accepted/can't force party to produce more goods than was paid for
76
true or false: if an indivisible good is only partially paid for, SoF is satisfied for the WHOLE item.
TRUE (ie -- paid for part of a boat, can get the whole boat)
77
what are "specially manufactured" goods?
goods specifically made for a buyer and that are not suitable for sale to others by the seller in the ordinary course of their business
78
when will oral Ks for specially manufactured goods be enforceable despite a lack of writing?
enforceable if (1) the seller has made *substantial beginning* in their manufacture or commitments for their purchase (2) *before* notice of repudiation is received
79
what remedies is a seller entitled to if a buyer breaches an enforceable oral K for specially manufactured goods?
entitled to full range of K remedies (not just equitable remedies) to put the seller in the position they *would have been* if there was no breach **NOTE = different from proportional enforcement used for normal sales of goods Ks
80
what is the merchants' confirmatory memo rule? (3 rqmts to enforce against recipient)
in **Ks between merchants**, if one party, within a reasonable time after oral agreement, sends to the other party a written confirmation of the agreement that is sufficient to bind the *sender*, it will *ALSO bind the recipient* if the recipient: 1) has **reason to know** of the confirmation's contents, 2) **does NOT object** to it in writing within 10 days of *receipt*, and 3) **quantity** terms are included in the memo
81
true or false: the Statute of Frauds requires a formal written K.
FALSE (can be a receipt, letter, check with details in the memo line, written offer that was accepted orally)
82
what are the writing requirements under the statute of frauds? (3 rqmts)
writing(s) must 1) reasonably identify the subject matter of the K 2) indicate that a K has been made between the parties, and 3) state with reasonable certainty the essential terms (usually ID parties, what's being agreed to, defendant's signature)
83
what 2 essential terms must be in a writing for land sale Ks?
1) description of the land, and 2) the price
84
what essential term must be in a writing for an employment K?
length of employment
85
what 2 essential terms must be included in a writing for the sale of goods?
1) quantity term, and 2) defendant's signature
86
what is a sufficient "signature" under SoF?
any mark or symbol made with the intention to authenticate the writing as that of the signer (can be printed, typed, e-signed, letterhead, initials, etc)
87
what are a party's options if a K violates the SoF?
party can sue for the reasonable value of services or part performance rendered OR restitution of any other benefit that has been conferred

Contracts (10 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions