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Defenses Flashcards

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1
Q

Explain Marriage - Statute of Frauds

Defenses

A

Memorize
Certain contracts, including those to induce marriage by offering something of value, must be evidenced in writing to be enforceable.

Exception
This does not include a return promise to marry.

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2
Q

Explain Year - Statute of Frauds

Defenses

A

Memorize
Certain contracts, such as those that cannot be performed within one year, must be evidenced in writing to be enforceable.

Remember
1. Timing runs from the time of formation until the end of performance.

  1. Applies even though the contract has already lasted longer than one year.
  2. . Cancellation clauses will not take a contract out of the statute of frauds as cancellation clauses produce excusable non-performance and excusable non-performance does not equal performance (for example, an employment contract lasting 3 years but that can be canceled with 10 days notice).

Exception
The contract can be taken out of the statute of frauds if there is any possibility that performance will be completed within one year.

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3
Q

Explain Land - Statute of Frauds

Defenses

A

Memorize
Certain contracts, including those for the sale of land, must be evidenced in writing to be enforceable.

Memorize
Under the “equal dignity rule”, a principle-agent agreement giving agent authority to execute a contract for an interest in land is enforceable if it is in writing and signed by the principle. Failure to comply will relieve the principle of liability.

Exception
Can be taken out of the SOF is any TWO of the following apply: 
1. Make payment
2. Move on the land
3. Make improvements
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4
Q

Explain Executor’s Promise - Statute of Frauds

Defenses

A

Memorize
Certain contracts, including those made by an executor to personally pay for the debt of an estate, must be evidenced in writing to be enforceable.

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5
Q

Explain Goods - Statute of Frauds

Defenses

A

Memorize
Certain contracts, including those for the sale of goods of $500 or more, must be evidenced in writing to be enforceable.

Exceptions
Goods can be taken out fo the Statute of Frauds if:

  1. They are specially manufactured goods not suitable for sale to others.
  2. There is part or full performance or acceptance of payment.
  3. Admission under oath or pleading.
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6
Q

Explain Surety - Statute Of Frauds

Defenses

A

Memorize
Certain contracts, including those by one who guarantees the payment of a debt of another, must be evidenced in writing to be enforceable.

Remember
The promise must be collateral and not primary.

Exception
Under the main purpose doctrine, a promise can be taken out of the statute of frauds if the main purpose of the promise was to financially benefit the promisor, rather than the debtor.

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7
Q

How can the SOF be satisfied?

Defenses

A

Remember
The Statute of Frauds can be satisfied by a writing that evidences the existence of a contract signed by the party to be charged.

Exception
Merchant’s Confirmatory Memorandum

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8
Q

What is a Merchant’s Confirmatory Memorandum?

Statute of Frauds - Defenses

A

Remember
Exception to signature requirement by party to be charged.

Remember
Under the UCC, as between merchants, if within a reasonable time a writing in confirmation of the contract sufficient against the sender is received and the party receiving it has reason to know of its contents, it satisfies the requirements against such party unless written notice of objection to its contents is given within 10 days.

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9
Q

What does MYLEGS stand for?

Statute of Frauds - Defenses

A

Remember
Marriage (Inducement)
Year (Cannot be performed within one year)
Land (Sale of land)
Executor’s Promise (to pay for debt of estate)
Goods ($500 or more)
Surety (guarantees payment of another)

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10
Q

What does SI IM DUUM stand for?

Defenses

A 
Remember 
Statute of Frauds
Illegality
Incapacity
Mistake 
Duress
Undue Influence
Unconscionability
Misrepresentation/Fraud
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11
Q

Explain Contracts with Minors - Incapacity

Defenses

A

Memorize
Contracts with minors are voidable at the option of the minor.

Remember
1. A contract may be disaffirmed by a minor at any time before reaching the age of majority. After reaching the age of majority, if the contract is not disaffirmed within a reasonable time – usually 30 days – then the contract is no longer voidable.

  1. If the contract is affirmed after reaching the age of majority, whether expressly or impliedly, the contract is no longer voidable.
  2. An implied affrtimation can also be making a single payment on a car (for example) after reaching the age of 18.
  3. Contracts with minors for the providing of necessities, not provided by someone else, are voidable. However, reasonable value of the necessities may be recovered.
  4. Necessities are food, clothing, and shelter. In (some) cases transportation (car), education expenses, and medical expenses.
  5. Contracts with minors are voidable even if consideration cannot be returned or was damaged by the minor.
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12
Q

Explain Contracts with Mental Deficiency People - Incapacity
Defenses

A

Memorize
Contracts with people who have a mental capacity so deficient that the person 1) does not understand the nature and consequences of the contract, or 2) is unable to act in a reasonable manner in relation to the contract, and the other party had reason to know of the mental deficiency, are voidable at the option of the mentally deficient person.

Remember
Mentally deficient people are liable for the reasonable value of necessities to the same extent as a minor.

Exception
However, if the mentally deficient person has a lucid moment and they affirm the contract, then the contract is enforceable.

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13
Q

Explain Contracts with Intoxicated People - Incapacity

Defenses

A

Memorize
Contracts with people who are so intoxicated as to 1) not understand the nature and consequences of a contract, or 2) are unable to act in a reasonable manger in relation to the contract, and the other party had reason to know of the intoxication, are voidable at the option of the intoxicated person.

Remember
Alcohol or drugs - both legal and illegal.

Intoxicated people are liable for the reasonable value of necessities to the same extent as a minor.

Exception
However, if the person recovers and affirms the contract, then the contract is enforceable.

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14
Q

What contracts are Illegal?

Illegality - Defenses

A

Memorize
Contracts that violate the constitution, law, or public policy are illegal and void.

Memorize
Where the subject matter is legal but the use or purpose is illegal, and one party is unaware of the illegal activity, the contract is voidable at the option of the innocent party.

Remember
1. This generally includes an agreement to commit a crime, gambling bets, loan sharking, and bribery of a public official or private business.

  1. Where the illegality relates to restriction on employment and trade, such as non-competition clauses, the courts may rewrite or “blue pencil” the clause to be
    reasonable.
  2. Non-compete clauses must be reasonable in time and geographic scope.
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15
Q

What is Supervening Illegality?

Illegality - Defenses

A

Memorize
If at the time the contract is formed the subject and purpose is legal, but then subsequently becomes illegal, obligation of the parties is discharged.

Remember
Relief may be sought in quasi-contract or restitution.

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16
Q

What is Licensing Illegality?

Illegality - Defenses

A

Memorize
If the purpose of a license is to protect the welfare of the public by ensuring minimum competency, then the contract is void.

If the purpose is to generate revenue then the contract is enforceable.

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17
Q

What is In Pari Delicto | “In Equal Fault” within Illegality?
Defenses

A

Memorize
When both parties are equally culpable, the court will genially not grant any relief.

Remember
Equitable claims for relief can be dismissed under the “clean hands” defense.

Exception
The less culpable party may recover in restitution and exceptional cases may alleviate the harshness of no relief.

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18
Q

What is Misrepresentation?

Defenses

A

Memorize
When misrepresentation of a material fact causes reasonable and actual reliance by plaintiff the contract may be void or voidable.

Remember
Mere puffing does not rise to the level of misrepresentation.

Remember
The general rule is that the seller has no duty to disclose, nor liability for non-disclosure, of material facts except where:

  1. Half-truths are made
  2. There was a genuine belief that the statement was true when made, but now, before reliance, the seller knows it is false.
  3. The statement was, in fact, true when made but now, before reliance, it is false.
  4. Where conduct rises to the level of active concealment.
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19
Q

What reliance is needed under Innocent Misrepresentation?

Defenses

A

Memorize

Innocent misrepresentation requires reasonable and actual reliance.

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20
Q

What reliance is needed under Negligent Misrepresentation?

Defenses

A

Memorize

Negligent misrepresentation requires reasonable and actual reliance.

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21
Q

Explain Intentional Misrepresentation - Fraud?

Defenses

A 
Memorize
Fraud (intentional misrepresentation) requires scienter, knowledge that the statement was false or reckless disregard as to its truth or falsity.

Fraud requires only actual reliance.

Where there is fraud in the inducement the contract is voidable at the option of the deceived party.

Where there is fraud in the factum (facts), the contract is void.

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22
Q

What is Duress (Physical)?

Defenses

A

Memorize
When a party enters into a contract or modifies an existing contract solely based on physical force or threats of physical force, the contract is void.

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23
Q

What is Economic Duress?

Defenses

A

Memorize
When a party enters into a contract or modifies an existing contract solely based on wrongful threats, the contract is voidable at the option of the victim.

Remember
The threat of a future crime or tort, threat of criminal prosecution, bad faith use of civil process, and threat of wrongful breach of an existing contract.

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24
Q

What is Procedural and Substantive Unconscionability?

Defenses

A

Memorize
When a contract or clause lacks any meaningful choice (Procedural Unconscionability) and when the terms unreasonably favor one party (Substantive Unconscionability) the majority rule is that the contract is unconscionable.

Remember:
Both Procedural and Substantive unconscionability are required to prove unconscionability.

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25
Are Adhesion Contracts unconscionable? Why? | Defenses
Memorize Adhesion contracts, such as standard form contracts with a take-it-or-leave-it proposition offering no real opportunity to scrutinize or understand the contract, are often found to be unconscionable.
26
Is there a Duty to Read a contract under the Common Law? | Defenses
Memorize At common law, in the absence of fraud, one who signs a written agreement is bound by its terms whether he read and understood it or not, or whether he can read it or not. However, modernly, courts will not enforce contracts that are difficult to read or understand because of the use of legalese, fine print or the words are unintelligible.
27
Are Contracts Against Public Policy unconscionable? | Defenses
Memorize Contracts considered to be against public good or that are injurious to the public are generally unconscionable. Remember 1. Any terms considered unconscionable must have been unconscionable at the time of formation. 2. Exculpatory clauses for consequential injury to the person in the case of consumer goods are unconscionable.
28
What Remedies are available under unconscionability? | Defenses
Memorize The courts may: 1. Refuse enforcement of the entire contract 2. Eliminate offending terms but enforce the rest (blue pencil). 3. Limit the application of any unconscionable terms.
29
What is Undue Influence? | Defenses
Memorize When one party unduly influences another, or asserts their will over the will of another, the contract is voidable at the option of the victim. Remember The wrongdoer must be: 1. In a position of trust, confidence, or superior power. 2. There must have been some type of improper persuasion against a victim who is susceptible to improper persuasion.
30
What is a Mutual Mistake? | Defenses
Memorize When both parties are mistaken as to a material fact, the contract is voidable at the option of the adversely affected party.
31
What is a Unilateral Mistake? | Defenses
Memorize When one party is mistaken as to a material fact, and 1) the non-mistaken party knew or should have known about the mistake, and 2) the mistake is one of computation or omission, then the contract is voidable. Remember A party is held responsible for mistakes by their intermediaries. Exception Mistakes as to judgement are no defense.
32
What is Ambiguity - Mistake? | Defenses
Memorize When a term is open to various interpretations, and either the term is associated with more than one thing or no one thing, the term is said to be ambiguous.
33
What is Patent Ambiguity - Mistake? | Defenses
Memorize | When a term is ambiguous on its face it is open for interpretation by the court.
34
What Latent Ambiguity - Mistake? | Defenses
Memorize When ambiguity becomes apparent only after further facts are presented, the ambiguity is said to be latent. Remember Neither/Both Where neither or both of the parties are aware of the latent ambiguity, there will be no contract unless both parties attach the same meaning to the ambiguity. One Party Where one party is aware of the latent ambiguity, there is a contract and the meaning is that of the unaware party. Term - Multiple Meanings If the term refers to multiple meanings and 1) the recipient is only aware of one meaning, and 2) the author is aware that the recipient is only aware of one meaning, then that is the meaning that is fixed for the term. Against the Drafter Ambiguous terms are usually interpreted against the drafter.
35
What is Scrivener's Error - Mistake? | Defenses
Memorize A court of equity may reform a written contract when the writing, because of mistake, does not reflect the actual agreement of the parties.
36
Satisfaction of Statute of Frauds - Remember for Essay | Statute of Frauds - Defenses
Remember for Essay 1. Always see if any contract falls within the SOF 2. Then see if it can be taken OUT of the SOF. 3. Then see is SOF is satisfied. 4. If a contract falls within the SOF, but does not satisfy the SOF and cannot be taken out, then the contract is not void or voidable, only unenforceable.
37
Define Parole Evidence Rule
Memorize (Know Cold) Prior written or oral, and contemporaneous oral expressions, that contradict, modify, or vary contractual terms are inadmissible if the written contract is intended as a complete and final expression of the parties.
38
Within the Stature of Frauds - Marriage - does it include a return promise to marry?
No
39
Within the Statute of Frauds - Year - how is timing determined?
Timing runs from the time of formation until the end of performance.
40
Within the Statute of Frauds - Year - does it apply even though the contract has already lasted longer than one year?
Yes
41
Will Cancelation Clauses take a contract (Year) out of the Statute of Frauds?
Cancellation clauses will not take a contract out of the statute of frauds as cancellation clauses produce excusable non-performance and excusable non-performance does not equal performance.
42
Can a contract be taken out of the Statute of Frauds (Year) if there is any possibility that performance will be completed within one year?
Yes, if there is ANY possibility that performance will be completed within one year, it can be taken out of the Statute of Frauds.
43
Under the Statute of Frauds - Land - the “equal dignity rule”, is a principle-agent agreement which gives an agent authority to execute a contract for an interest in land and is enforceable if it is in writing and signed by the principle. Is this correct?
Yes
44
What happens if the agent fails to comply under the "equal dignity rule" principle-agent agreement?
Failure to comply will relieve the principle of liability.
45
When can the sale of Land be taken out of the Statute of Frauds?
If any TWO of the following apply: 1. Make payment 2. Move on the land 3. Make improvements
46
When can Goods be taken out fo the Statute of Frauds? Simply put, please?
1. If they are specially manufactured goods not suitable for sale to others. 2. If there is part or full performance or acceptance of payment. 3. By admission under oath or pleading.
47
Under Surety, Statute of Frauds, the promise to pay for the debt of another must be collateral and not primary, correct?
Yes, the promise to pay for the debt of another must be collateral and not primary.
48
When can Surety be taken out of the Statute of Frauds?
Under the Main Purpose Doctrine.
49
What is the Main Purpose Doctrine within Surety, Statute of Frauds?
Under the main purpose doctrine, a promise can be taken out of the statute of frauds if the main purpose of the promise was to financially benefit the promisor, rather than the debtor.
50
What is the exception to the "signed by the party to be charged" rule in the Statute of Frauds?
A Merchant's Confirmatory Memorandum.
51
What is a Merchant's Confirmatory Memorandum? Simply put, please?
Per Ed: If one merchants sends another merchant a confirmation in writing that is sufficient to bind the sending merchant, and it is received by the receiving merchant and the receiving merchant knows of its contents, and the receiving merchant doesn't object within 10 days, then it binds the receiving merchant.
52
Are contracts with Minors voidable at the option of the minor?
Yes, contracts with Minors are voidable at the option of the minor.
53
When can a contract with a minor be disaffirmed by the minor?
At any time before reaching the age of majority.
54
After a minor reaches the age of majority, can a contract still be disaffirmed?
Yes, if the contract is disaffirmed within a reasonable time – usually 30 days – then the contract is no longer voidable.
55
What if a minor doesn't disaffirm a contract within 30 days of reaching the age of majority?
The contract is no longer voidable.
56
Can anyone but the minor void a contract with a minor?
No, contracts can ONLY be disaffirmed by the minor.
57
Are contracts with minors for the providing of necessities, not provided by someone else, still voidable?
Yes, but reasonable value of the necessities may be recovered.
58
Within contracts with a minor, what if the consideration cannot be returned or was damaged by the minor?
The contract is still voidable.
59
For contracts with mentally deficient people, must they understand the nature and consequences of a contract?
Yes, they must understand the nature and consequences of a contract.
60
For contracts with mentally deficient people, in addition to understanding the nature and consequences of a contract, must they be able to act in a reasonable manner in relation to the contract?
Yes, mentally deficient people must both understand the nature and consequences of a contract AND must be able to act in a reasonable manner in relation to the contract.
61
For contracts with mentally deficient people, must the other party have reason to know that the mentally deficient person does not understand the nature and consequences of a contract and cannot act in a reasonable manner in relation to the contract?
Yes, the other party must have reason to know.
62
Are contracts with mentally deficient people voidable at the option of the mentally deficient person?
Yes, contracts with mentally deficient people are voidable at the option of the mentally deficient person.
63
What if the mentally deficient person has a lucid moment and they affirm the contract, is the contract then enforceable.
Yes, if a mentally deficient person has a lucid moment and they affirm the contract, the contract is then enforceable
64
Are mentally deficient people liable for the reasonable value of necessities to the same extent as a minor?
Yes, mentally deficient people are liable for the reasonable value of necessities to the same extent as a minor.
65
For contracts with intoxicated people, must they understand the nature and consequences of a contract?
Yes, intoxicated people must understand the nature and consequences of a contract just like a mentally deficient person.
66
For contracts with intoxicated people, in addition to understanding the nature and consequences of a contract, must they be able to act in a reasonable manner in relation to the contract?
Yes, in addition to understanding the nature and consequences of a contract, intoxicated people must be able to act in a reasonable manner in relation to the contract.
67
For contracts with intoxicated people, must the other party have had reason to know of the intoxication?
Yes, the other party must have reason to know of the intoxication.
68
Are contracts with intoxicated people voidable at the option of the intoxicated person?
Yes, contracts with intoxicated people are voidable at the option of the intoxicated person.
69
What if the intoxicated person recovers and affirms the contract, is the contract then enforceable?
Yes, if the intoxicated person recovers and affirms the contract, the contract then enforceable.
70
Are intoxicated people liable for the reasonable value of necessities to the same extent as a minor?
Yes, intoxicated people are liable for the reasonable value of necessities to the same extent as a minor.
71
What makes an intoxicated person "intoxicated"?
Alcohol and drugs - both legal and illegal.
72
Do contracts with minors, mentally deficient people, and intoxicated people fall under Incapacity defenses?
Yes, contracts with minors, mentally deficient people, and intoxicated people fall under Incapacity defenses.
73
Under Illegality, what if only one party is aware of the illegal activity?
Where the subject matter is legal but the use or purpose is illegal, and one party is unaware of the illegal activity, the contract is voidable at the option of the innocent party.
74
Under illegality, what types of contracts are illegal?
Agreements to commit a crime, gambling bets, loan sharking, and bribery of a public official or private business.
75
Under Illegality, what happens when it relates to employment?
Where the illegality relates to restriction on employment and trade, such as non-competition clauses, the courts may rewrite or “blue pencil” the clause to be reasonable.
76
Under Illegality, must non-compete clauses be reasonable in time and geographic scope?
Yes, non-compete clauses must be reasonable in time and geographic scope.
77
What if the purpose of an illegal license (no license) is to protect the welfare of the public by ensuring minimum competency?
The contract is void. An example is an attorney with no license.
78
What if the purpose of an illegal license (no license) is to generate revenue?
If the purpose is to generate revenue then the contract is enforceable. An example would be a business (non-restaurant) license.
79
Can anyone but the intoxicated person void a contract with the intoxicated person?
No, contracts with intoxicated people are voidable only at the option of the intoxicated person.
80
Can anyone but the mentally deficient person void a contract with the mentally deficient person?
No, contracts with mentally deficient people are voidable only at the option of the mentally deficient person.
81
Within Illegality, under what defense can equitable claims for relief be dismissed?
Equitable claims for relief can be dismissed under the “clean hands” defense.
82
Under Illegality "In Pari Delicto" or "In Equal Fault", might the less culpable party recover restitution and in exceptional cases alleviate the harshness of no relief?
Yes
83
Does Puffing rise to the level of misrepresentation?
Generally, no.
84
What is the general rule of duty to disclose within misrepresentation?
The general rule is that the seller has no duty to disclose material facts.
85
Does the seller have any liability for non-disclosure in misrepresentation under the general rule?
The general rule is that the seller has no duty to disclose, nor liability for non-disclosure, of material facts.
86
What are the four exceptions to the general duty to disclose in misrepresentation?
Where: 1. Half-truths are made 2. There was a genuine belief that the statement was true when made, but now, before reliance, the seller knows it is false. 3. The statement was, in fact, true when made but now, before reliance, it is false. 4. Where conduct rises to the level of active concealment.
87
Under misrepresentation, what happens when there is fraud in the inducement?
Where there is fraud in the inducement the contract is voidable at the option of the deceived party.
88
Under misrepresentation, what happens when there is fraud in the factum?
The contract is void.
89
Fraud (intentional misrepresentation) requires scienter, knowledge that the statement was false or reckless disregard as to its truth or falsity. Correct?
Correct
90
What reliance is needed under Fraud?
Fraud requires only actual reliance.
91
So Duress (Physical Duress) is threats of physical harm or physical force?
Yes
92
Economic Duress is wrongful threats of a non-physical nature. What type of threats?
The threat of a future crime or tort, threat of criminal prosecution, bad faith use of civil process, and threat of wrongful breach of an existing contract.
93
What is the status of the contract under physical duress?
The contract is void.
94
What is the status of the contract under Economic Duress?
The contract is voidable at the option of the victim.
95
When a contract or clause lacks any meaningful choice, what type of unsonscionability is this?
Procedural Unconscionability
96
When the terms of a contract unreasonably favor one | party, what type of unsonscionability is this?
Substantive Unconscionability
97
Are both Procedural and Substantive Unconscionability necessary to prove unconscionability?
Yes, both Procedural and Substantive unconscionability are necessary to prove unconscionability.
98
When must any terms considered unconscionable first have been unconscionable?
Any terms considered unconscionable must have been unconscionable at the time of formation.
99
Are exculpatory clauses for consequential injury to the person in the case of consumer goods unconscionable?.
Yes
100
For Undue influence, must the wrongdoer be in a position of trust, confidence, or superior power?
Yes, the wrongdoer be in a position of trust, confidence, or superior power.
101
For Undue influence, in addition to the wrongdoer being in a position of trust, confidence, or superior power, must there have been some type of improper persuasion against a victim who is susceptible to improper persuasion?
Yes, in addition to the wrongdoer being in a position of trust, confidence, or superior power, there must have also been some type of improper persuasion against a victim who is susceptible to improper persuasion?
102
So for Undue Influence, the wrongdoer must be in a position of trust, confidence, or superior power, and there must also have been some type of improper persuasion against a victim who is susceptible to improper persuasion?
Correct
103
What are the three types of misrepresentation?
Innocent, Negligent, and Intentional (Fraud).
104
Under mutual mistake, the contract is voidable at the option of the adversely affected party, correct?
Correct, the contract is voidable at the option of the adversely affected party,
105
What are the two conditions of a unilateral mistake?
1. The non-mistaken party knew or should have known about the mistake. 2. The mistake is one of computation or omission.
106
What is the status of a contract with a unilateral mistake?
The contract is voidable.
107
Under Unilateral mistake, is a party is held responsible for mistakes by their intermediaries?
Yes, a party is held responsible for mistakes by their intermediaries
108
Under Unilateral mistake, are mistakes as to judgment a defense?
No, mistakes as to judgment are no defense.
109
What happens when neither (or both) parties are aware of a latent ambiguity (mistake)?
Where neither or both of the parties are aware of the latent ambiguity, there will be no contract unless both parties attach the same meaning to the ambiguity.
110
What happens when only one party is aware of latent ambiguity (mistake)?
Where one party is aware of the latent ambiguity, there is a contract and the meaning is that of the unaware party.
111
What happens when a term refers to multiple meanings in latent ambiguity (mistake)?
If the term refers to multiple meanings and 1) the recipient is only aware of one meaning, and 2) the author is aware that the recipient is only aware of one meaning, then that is the meaning that is fixed for the term.
112
In latent ambiguity (mistake), are ambiguous terms usually interpreted against the drafter?
Yes, in latent ambiguity, ambiguous terms are usually interpreted against the drafter.
113
Is a Merchant's Confirmatory Memorandum ALWAYS between two merchants?
Yes, a Merchant's Confirmatory Memorandum is ALWAYS between two merchants.
114
Can you explain simply why a cancellation clause will not take a contract out of the SOF - Under 1 year?
A cancellation clause does not constitute performance and therefore can't assist in a contract being "performed" within one year. It is only excusable non-performance. For example, an employment contract lasting 3 years but that can be canceled with 10 days notice. Just because it can be cancelled within 10 days doesn't meant the contract for 3 years was "performed". It was excusably not performed.
115
Can you cover some of Ed's direction on how to raise and handle SOF on the essay's?
Yes, remember: Whenever you raise SOF as a defense (and even if THERE is a writing between parties) determine: 1. Does the contract need to be in writing? 2. Is there any way to show that it doesn't need to be in writing? If so, take it out of the SOF and say something like "but we also have a writing". 3. If it needs to be in writing, and there is a writing, it satisifies the SOF. If it needs to be in writing, and there is no writing, it is an unenforceable contract. It is NOT void or voidable.
116
So a contract that fails under the SOF for no writing is only unenforceable, correct? It is never void or voidable?
Correct, a contract that fails to satisfy the SOF is only unenforceable.
117
Is a contract that fails to satisfy the SOF illegal? Can there still be a contract if the parties desire one?
A contract that fails to satisfy the SOF is NOT illegal and does not need to be dissolved. It is simply unenforceable IF one of the parties wants to avoid enforcement. Both parties can still fulfill the contract if they choose and it is a VALID contract.
118
So the SOF is really just for the protection of the party to be charged?
Yes, protection against fraud. Protection against "why would I agree to that?" when someone says you promised to sell them your house at 50% of its value. And you never did. "Where's the writing signed by me?"
119
So what, simply put, is the party to be charged?
The party against whom enforcement is sought. i.e. the homeowner who says they never agreed to sell their house for 50% of its value and you're trying to force (enforce) them to sell.
120
So, what are the two ways a minor can impliedly affirm a contract after reaching the age of 18?
1. The minor can simply fail to disaffirm the contract by doing nothing for a reasonable time - usually 30 days. 2. If the minor makes a single payment on an item (a car, for example), once turning 18, the contract is then affirmed.
121
What are considered necessities for a minor?
Necessities are food, clothing, and shelter. In (some) cases transportation (car), education expenses, and medical expenses.
122
Under illegality, If there is no license under "welfare fo the public" - like an attorney with no license - can the other party recover any monies paid?
Yes, not only is the contract void, the victim party can seek enforcement from the non-licensed party for any monies paid.
123
Under misrepresentation, must the misrepresentation concern a material fact or can it also concern options?
Misrepresentation can concern a material fact only. Not opinions.
124
Under misrepresentation, what is another was of saying "reasonable" reliance?
Reasonable under misrepresentation means justifiable.
125
Under misrepresentation, the general rule is that there is no duty to disclose. But, can someone lie if they are asked about something they have no duty to disclose?
No, a person cannot lie. If asked, even if there was no previous duty to disclose, the party must disclose by telling the truth.
126
Under misrepresentation, what is an example of fraud in the factum?
You hand me a "birthday card" to sign but it is actually a deed to my house. That is fraud in the fact and is void.
127
Under misrepresentation, what is an example of fraud in the inducement?
A car salesman lies about miles per gallon so you'll buy the car. This is fraud in the inducement and is voidable.
128
What is an example of economic duress?
I'll breach my first contract with you if you don't agree to the terms of my second contract.
129
What is an example of an unconscionable contract?
Unconscionable will be so obvious it is basically illegal. Like violation of child labor laws and wage laws.
130
Are standard form contracts ALWAYS unconscionable?
No, they are sometimes found to be unconscionable.
131
For undue influence, lets say you have someone in a person of trust but the other person is not one normally susceptible to undue influence - like a very strong willed person. Is this undue influence?
No, undue influence requires BOTH: 1. That the wrongdoer be in a position of trust, confidence, or superior power. AND 2. There must have been some type of improper persuasion against a victim who is susceptible to improper persuasion.
132
Can the value of an item fall under mutual mistake? Say a diamond that both thought was just a stone?
No, mutual mistake as a defense does not include the value of an item.
133
Can there be a defense of unilateral mistake if the non-mistaken party did not know (or should not have known) about the mistake?
No, unilateral mistake requires that the non-mistaken party knew or should have known about the mistake.
134
Can you describe Scrivener's Error simply?
Scrivener's error is basically a "typo" on a contract. For example, you and I have been discussing the sale of my car for $6,000. The contract says "$600" and I don't notice it and I sign the contract. This is not enforceable under Scrivener's error.
135
Can you explain patent ambiguity - mistake, simply?
Patent ambiguity is when there is no such thing as what the contract is referring (USCLA), or there are two things it could be referring to.
136
Can you explain latent ambiguity - mistake, simply?
Latent ambiguity basically means that things look okay on the surface, and the mistake was deeper in the contract.
137
Can you explain what a Surety is a little more clearly, please?
A principle promise (if you don't sue him I'll pay you) is NOT a surety. A surety is a collateral promise to someone else's principle promise (IF he doesn't pay, I'll pay).
138
Can you explain the Main Purpose Doctrine under Surety a little more clearly?
The Main Purpose Doctrine allows the Surety to come out for the Statute of Frauds and no writing is needed (if) my promise to pay the debt of another is for MY financial benefit. Remember, the SOF is about "why would I do that. there's no benefit to me". "Why would I promise to pay you if he didn't?" So, when there is a benefit to you, the courts don't need a writing because they understand why you'd make a promise to pay.

Contracts - Mid-Term Law School Review (5 decks)

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