Defenses Flashcards
Contract
Defenses
1) Illegality
2) Public Policy
3) Misrep
4) Non-Disclosure
5) Undue Influence
6) Unconscionable
7) Ambiguity
8) Mistake
7) Ambiguity
Contract Defense
There will be no contract if:
1) Parties use material term that is open to at least 2 reasonable interpretations.
2) Each party attaches different meaning
3) Neither party know or has reason to know of ambiguity
Contract
Impracticability
Requires that a party encounter EXTREME and UNREASONABLY DIFFICULTY or experience that is not anticipated.
- a change due to normal risks that could have been anticipated will be excuse performance.
Within the Statute of Frauds
1) Promise to answer for the debt of another (Suretyship)
2) Service Contract not “Capable” of being performed within a year from the contract.
3) Transfer of real estate (More than one year)
4) Marriage
5) Executor
Exception: How SOF can be Satisfied
Performance and Transfer of Real Estate
Part Performance satisfies SOF in transfer of real estate when 2 or 3 things happens:
1) Improvement of land
2) Payment
3) Possession
Contract
Frustration
Will exist if the purpose of the contract has because ________ by virtue of some supervening event not the fault of the party seeking discharge.
Elements:
1) Supervening act
2) Did not reasonably foresee
3) Purpose almost or completely destroyed
4) Purpose of contract was realized by both parties at the time of the contract.
Perfect Tender
Requirement for Revocation of Acceptance
1) non conforming substantially impairs the value of the goods,
2) Excusable ignorance of grounds for revocation or reasonable reliance on seller’s assurance of satisfaction, and
3) Revocation within a reasonable time after discovery of non conformity.
Non-Enforcement (Contract)
Misrepresentation
1) Statement of fact before contract
2) by one of the contracting parties or her agent
3) False
4) Induce contract
Novation
An agreement between both parties to an existing contract to the substitute a new party
Requirements:
1) Agreement between both parties
2) Excuse Liability
Delegation
1) Don’t need agreement by both parties
2) Doesn’t excuse.
SOF Satisfied Performance
Part performance and sale of goods
Ordinary Good
* Part performance of a contract for the sale of goods satisfies SOF, but only to the EXTENT of the PART PERFORMANCE
Special Manufacture Goods:
* Oral contracts for special manufacture goods not suitable for sale in ordinary course of the seller business are enforceable when seller has BEGUN to SUBSTANTIALLY PERFORM
Contract Defense
Impossibility
1) Objective
2) Impossible after formation of the contract
3) Sue for recision or restitution
4) Partial Impossibility
* only the extent impossible
5) Temp Impossibility: ( Does not discharge)
6) Part Performance: ( Quasi contract)
7 ) Specific Situation
Contract Defense
Unconscionable
1) Unfair Surprise (Procedural)
2) Oppressive Terms
3) Tested at time the agreement was made.
4) By Court
Perspective Inability To Perform
Insecurity
1) Reasonable Grounds for insecurity
2) Written Demand for adequate Assurance
3) Commercially reasonable to stop performance
