Defenses

Question 1

Stees v. Leonard
(Mud Building)

Answer 1

Builder reasonably knew the risks, but did not plan for it in the contract. So impossibility is not a defense.

Question 2

Taylor v. Caldwell
(Music Hall)

Answer 2

1. The party must perform an unqualified promise even though performance is more burdensome than expected.
2. if performance becomes impossible by the perishing of the thing, without fault, then the party is released from the promise.

Question 3

R 261 - Supervening Impractability

Answer 3

If the occurrence or nonoccurrence of an event on which a basic assumption of the contract is made, a party may be released.

IOW: there was a basic assumption the event would not occur.

Question 4

Force Majure Clause

Answer 4

a list of events that would excuse a party from performing due to impractability

Question 5

Mistake

Answer 5

Belief not in accordance with the facts that:
- has a material effect
- and was a basic assumption on which the contract was made

Grieved party is released unless they bear the risk

Question 6

Mutual Mistake

Answer 6

Both parties mistaken

Question 7

Unilateral Mistake

Answer 7

One party mistaken and

(a) enforcement would be unconscionable OR

(b) the other party had reason to know of the mistake and did not alert them to it.

Question 8

Bears the risk

Answer 8

• risk is allocated to him per the agreement
• they were aware of their limited knowledge and treated it as sufficient

Question 9

Sherwood v. Walker
(Cow Case)

Answer 9

Rose of Aberlone

the mistake of the parties “went to the whole substance of the agreement” as to what was being sold

Question 10

Lenawee Party

Question 11

Anderson v. Omeara
(Dredge Case)

Answer 11

No mutual mistake because the seller was aware of the dredge’s capabilities.

There was a unilateral mistake, but the plaintiff bore the risk because he had a lack of knowledge he considered efficient.

Question 12

Promises of the parties are generally dependent

Answer 12

Constructive Conditions

Question 13

R 234

Answer 13

1. If party exchange can be done simultaneously, it is due simultaneously.
2. If one party performance takes a period of time, his is due early

Question 14

Jacobs and Young v. Kent

Answer 14

If a party substantially performs, insignificant deviations are not forfeiture

In this case, the differences in value are the appropriate damages

Question 15

OW Grun Roofing

Answer 15

if the deficiency in the contractor’s performance is so pervasive that it frustrates the purpose of the contract, substantial performance does not apply

Question 16

Perfect Tender Rule - UCC

Answer 16

Buyer can reject goods for any imperfection

Question 17

2-508

Answer 17

Buyer can cure imperfect tender if there is time left

Question 18

Fanok v. Canover Boat
(burning boat)

Answer 18

Rejection for perfect tender must be made in reasonable time

Question 19

Duty of good faith

Answer 19

exactly what it sounds like
- most applicable in satisfaction clauses

Question 20

Wood v. Lucy Lady Duff

Question 21

Bloor v. Falstaff

Question 22

Unconscionability

Answer 22

When no one defense fully applies but the contract is unjust

• most courts require both procedural and substantive uncon.

Question 23

William v walker thomas
(furniture)

Answer 23

furniture payments

Question 24

Procedural Unconscionability

Answer 24

Absence of meaningful choice

• bargaining power
• ability to understand contract
• fine print
• deception

Question 25

Substantive Unconscionability

Answer 25

unreasonably unfavorable terms

• fairness
• one sidedness

Question 26

Federal Arbitration Act

Answer 26

You can hardly raise uncon. unless about the arbitration clause itself

Question 27

contracts of adhesion

Answer 27

“take it or leave it”

procedural unconscionability

Question 28

Modification

Answer 28

typically require fresh consideration
- softened by UCC and R2

in any modification case you can try to argue duress

Question 29

Alaska Packers

Answer 29

If parties enter a new agreement under which one party agrees to do no more than he was already obligated to do under an existing contract, the new agreement is unenforceable for lack of consideration.

Question 30

Standard Finance v. Ellis

Question 31

Austin Instruments

Answer 31

“give us more money or we will not perform”

• there are cases where this is theoretically appropriate.

Question 32

Economic Duress

Answer 32

a threat not to perform under a contract, as in this case, or a threat not to do business any more

Question 33

Duress (General)

Answer 33

improper threat that leaves a party with no reasonable alternative

not all threats are improper

Question 34

Odorizzi v. Bloomfield School District

Answer 34

P was pressured into resigning without lawyers in his own home by his boss
- Undue Influence

Question 35

Undue Influence

Answer 35

One person is overcoming anothers will without convincing their judgement

-

Question 36

Hank v Powder Hills

Answer 36

Exculpatory clause that protects liability for one’s own negligence is against public policy

Question 37

R 195

Answer 37

Basically Powder Hills ruling

Question 38

Valley Medical

Answer 38

Noncompetes violate public policy if they do not protect a legitimate business interest

Question 39

Misrepresentation

Answer 39

assent is induced by either a fraudulent or a material misrepresentation by opposing or third party

Question 40

Fraudulent Misrepresentation

Answer 40

• knows an assertion is not in accordance of the facts
• does not have the confidence or basis that he states

Question 41

Material Misrepresentation

Answer 41

if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so

Question 42

Misrepresentation through Concealment

Answer 42

Action intended or known to be likely to prevent another from learning a fact is equivalent to an assertion that the fact does not exist.

Question 43

Misrepresentation through Non-Disclosure

Answer 43

(a) where he knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation

(b) where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption

(c) where he knows that disclosure of the fact would correct a mistake of the other party as to the contents or effect of a writing,

d) where the other person is entitled to know the fact because of a relation of trust and confidence between them.

Question 44

Reed v. King
(murder house)

Answer 44

Not letting P know that murders occurred in the house, which depreciated the value, is non-disclosure

Question 45

Stambovsky
(ghost)

Answer 45

Pretty narrow rule: their conduct created a duty to disclose the ghost

Question 46

Laidlaw v. Oregon

Answer 46

ANDREW JACKSON WOOWOO

Question 47

Obde
(termites)

Answer 47

Termites

Parties to a transaction have a duty to disclose material facts whenever justice, equity, and fair dealing demand

Question 48

LN Grove v. Chapman
(Disney)

Answer 48

Disney

both parties were speculating, and that’s not a misrepresentation.

Question 49

Statute of Frauds

Answer 49

Requires some contracts to be in writing

MYLEGS

Question 50

MYLEGS

Answer 50

Marriage
Year
Land
Executor
Goods (500 or more)
Surety

For our purposes, the important ones are sale of land, 1 year provision, and UCC sale of goods