Defenses

Question 1

Statute of Frauds

Answer 1

requires writing & signed by party to be charged

1) real property
(2) K performable after a year
(3) Executor
(4) guarantee
(5) Marriage
(6) UCC ($500 or more

Question 2

Duress

Answer 2

voidable when established party making claim was forced to agree to K by means of :

(1) wrongful threat
(2) precluding exercise of his free will
* *no reasonable choice**

Question 3

Undue Influence

Answer 3

use of excessive pressure to persuade one vulnerable to such pressure

Patterns of pressure:

(1) discussion at unusual/inappropriate time
(2) discussion at unusual/inappropriate place
(3) demand action be done at once
(4) extreme emphasis of consequence of demand
(5) multiple persuaders against one person
(6) absence of 3d party advisers for other party (& absence of available attorney)

Question 4

Unconscionability (Common Law)

Answer 4

absence of meaningful choice AND contract terms that are unreasonably favorable towards one party

Question 5

Unconscionability (UCC)

Answer 5

must be substantively AND procedurally unconscionable.

Question 6

Unconscionable Remedies

Answer 6

Court can:

(1) take out the clause
(2) refuse to enforce the contract OR
(3) limit the clause so as to not make the K unconscionable

Question 7

Factors for Procedural Unconscionability (UCC)

Answer 7

(1) standardized agreement with parties of unequal bargaining power
(2) no chance to read document
(3) use of fine print for the provision being enforced
(4) absence of evidence K was commercially reasonable
(5) terms of K
(6) relationship of parties
(7) all other circumstances surrounding formation of K

Question 8

Mistake

Answer 8

seller has right to rescind when mistake is mutual AND mistake goes to the whole substance of the K

Question 9

When does a party bare the rise of mistake under common law?

Answer 9

(1) risk is allocated to him by agreement of the parties
(2) he only has limited knowledge at formation of K and treats it as sufficient (conscious ignorance) OR
(3) risk is allocated by court if reasonable to do so

Question 10

Mutual Mistake (Common Law)

Answer 10

contract voidable unless party bares risk of mistake

Question 11

Mistake of one party (Common Law)

Answer 11

mistake has material effect on K, K is voidable if party did not bare the risk AND

(1) mistake makes the K unconscionable, OR
(2) other party has reason to know (or caused) the mistake