Defenses to Enforcement

Question 1

Contract defenses-NLNMULIC

Answer 1

Though not “defenses” in the traditional sense, any failure of the underlying contract can operate as a defense, such as:

1. No mutual assent.
2. Lack of consideration.
3. No writing
4. Misrepresentation, fraud, or duress at the time of contracting.
5. Unconscionability: Unfairness at the time of contracting. 6. Lack of capacity to contract
6. Illegality of contract.
7. Condition precedent not met

Question 2

Laches

Answer 2

A claim that the P has delayed bringing the action and that the delay has prejudiced the D.

Question 3

Unclean hands

Answer 3

A claim that the party seeking wrongdoing in the transaction

Question 4

Sale to a bona fide purchaser

Answer 4

A claim that the subject matter has been sold to a person who purchased for value and in good faith.

Question 5

Statute of Limitations-UCC

Answer 5

4-year SOL. The parties may shorten the period by agreement to no less than one year, but they may not lengthen the period.

Question 6

Impossibility

Answer 6

Impossibility occurs when a supervening, unforeseeable event makes performance impossible and thus discharges performance. The event must be one that neither party assumed the risk of, and performance must be literally impossible. Typically, this can happen three ways:

1. Destruction of the contract subject matter, or the means of performance proscribed in the contract.
2. Death or incapacity of a person required to perform under the contract.
3. Supervening illegality: The subject of the contract was legal at the time of contracting, but now it isn’t.

Question 7

Impracticability

Answer 7

Impracticability occurs when the occurrence of an event the parties assumed would not occur makes performance extremely and unreasonably difficult. The event must concern a basic assumption of the contract and the parties must not have allocated the risk of that event to the party seeking to use this defense.

Question 8

Frustration of purpose

Answer 8

Occurs when a party’s purpose for entering the contract is destroyed by supervening events. Both parties must know the purpose of the contract; the event must not be reasonably foreseeable; and frustration is total.

Question 9

Death After K

Answer 9

Death doesn’t make a person’s K obligations disappear, UNLESS the party to the K is a special person necessary for the K.