Defenses to enforceability

Question 1

What are the five common defenses to enforceability?

Answer 1

1. lack of capacity
2. Duress
3. Illegality
4. Unconscionability
5. Misrepresentation

Question 2

Describe Lack of Capacity defense to enforceability

Answer 2

Can be caused by: \

1. infancy - underage
2. mental illness - when one party can’t reasonably understand a contract and the other party knows it
3. intoxication - when one party knows the other is drunk and because of their drunkeness, cannot enter into a contract

Question 3

Describe the unconscionability defense to enforceability

Answer 3

Contracts may be procedurally or substantively unconscionable

1. procedurally unconscionable if: one party doesn’t have the power to negotiate terms, provisions are hidden in the contract
2. substantively unconscionable if: terms are one sided or overly harsh against one side

Question 4

When is misrepresentation a defense to enforceability?

Answer 4

When an untrue assertion that is fraudulent and material is justifiably relied on

Question 5

Describe types of misrepresentation

Answer 5

1. Concealment
2. Non-dsclosure - if you know this info is important to the other party or if there is a relationship of trust that requires disclosure
3. Fraudulent misrepresentation - induces assent when a party knows something isn’t true
4. Material representation - induces a reasonable party to assent

Question 6

When is a reliance on an opinion justifiable

Answer 6

1. when the party has a relationship of trust and confidence whith the other party
2. when one party believes the other is an expert or has special skill/knowledge
3. when one party is susceptible to the misrepresentation through illiteracy or gullibility