Defenses

Question 1

Defenses

Answer 1

formation of a contract can be void or voidable by a proper defense

Question 2

Incapacity/Infancy (Voidable):

Answer 2

Minors, persons under guardianship, mentally incapacitated, and intoxicated persons do not have legal capacity to enter a K, but may be liable for necessaries furnished to them.
i) Is it viable?
ii) Was it ratified?
ii) Restitution in store? (Add restitution rule to slap down – wtf is the rule)

Question 3

Misunderstanding

Answer 3

There is no assent if the parties attach materially different meanings to their manifestations, and neither party knows or has reason to know the meaning attached by the others; or each party knows or has reason to know the meaning attached by the other

Question 4

Mistake

Answer 4

is a belief not accord with the facts and can be mutual or unilateral (VOIDABLE)
(i) Mutual Mistake (voidable): Mistake of fact at the time formation. About a basic assumption of contract. That has a material impact on the deal. Adversely affected party did not assume the risk by agreement (as in K) or conscious ignorance
(ii) Unilateral Mistake (voidable): in addition to the elements of mutual mistake, it must be proven that the mistake would make the contract unconscionable OR the other party had reason to know of the mistake or his fault caused it.

Question 5

Misrepresentation

Answer 5

an assertion of fact that is not true. It can be innocent but material, intentional and knowingly, or when opinions are justifiably relied on. Non-disclosure of a fact is an assertion if disclosure would prevent a previous assertion from being fraudulent or material, correct a mistake about a basic K assumption, contents, effect of a writing, or the party is entitled to know based on a relationship of trust and confidence.

Question 6

Fraudulent Misrepresentation

Answer 6

has two types; Fraud in factum (void), when a person tricks a party into signing a contract by making it appear that the party is signing a completely different document; and fraud in inducement (voidable), when the misrepresentation is used to induce another to enter a K. Puffery is generally not considered misrepresentation.
i) Fraud in inducement requires. a fraudulent misrepresentation of fact, with intent to induce assent. It induced assent, the other party justifiably relied on the misrepresentation.
ii) Non-Fraudulent Misrepresenation (Voidable): If there is a material misrepresentation of fact, that induced the adversely affected party to assent, and the affected party was justified in relying on the misrepresentation.

Question 7

Duress

Answer 7

physical duress renders a K void. Duress via an improper threat is voidable when the affected party assents due to no reasonable altemative. Improper threats include threats of a tort or crime, criminal prosecution, bad faith civil action, or breach of the duty of good faith and fair dealing under K.

Question 8

Undue Influence

Answer 8

a contract is voidable if the adverse party’s assent is induced because of their susceptibility to pressure, and the dominant party’s excessive pressure which created unfair bargaining power. Factors include time and place of transaction, insistence that the deal be completed immediately, emphasis on consequences of delay, multiple persuaders, absence of advisers, statements that there is no time to consult advisers

Question 9

Unconscionability

Answer 9

a court may refuse to enforce a K or provision to avoid unfair terms that result from the uneven bargaining process. Procedural, absence of meaningful choice; substantively, terms are grossly uneven.

Question 10

Illegality Or Public Policy

Answer 10

if any part of the contract is illegal or contrary to public policy, the contract is void and will not be enforced.