Defenses to Formation / Enforceability Flashcards

1
Q

incapacity

A

must have capacity to enter into a K
- K is voidable by the person who lacked capacity

lack of capacity: either
1. lack of mental capacity
2. minor

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2
Q

lack of mental capacity

A

person CANNOT understand the k’s meaning & effect
- Intoxication: may be deemed a lack of capacity ONLY if other person has reason to know of intoxication

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3
Q

minors

A

persons under 18 years old
- Exception 1: necessities - minors are bound on Ks for necessities (food, shelter, clothing, medical care)
- Exception 2: implied affirmation - contract can be enforced if minor:
1. lacked capacity @ time of K,
2. gains capacity later, AND
3. retains benefit of K w/out complaint

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4
Q

duress

A

is a wrongful act or threat that overcomes the free will of a person
- Physical Compulsion: K is VOID - occurs if a person phsyically compels another person to agree to a K (eg, by gun-point)

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5
Q

non-physical / economic duress

A

K is VOIDABLE by V. Occurs when:
1. an improper threat is made,
2. that induces a party,
3. who has NO reasonable alternative,
4. to enter into a K

NOTE: a mere threat to breach a K (without more) is generally NOT sufficient

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6
Q

undue influence

A

K is VOIDABLE by V. Requires:
1. unfair persuasion of a person (eg, overbearing pressure), AND
2. who is either:
- under the domination of the person exercising influence, OR
- in a sufficiently close relationship to justify believing that the other person will act in their interest or welfare (eg, family, fiduciary relationship)

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7
Q

mistake

A

2 types:
1. mutual mistake
2. unilateral mistake

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8
Q

mutual mistake

A

K is VOIDABLE if:
1. both parties are mistaken,
2. as to a basic assumption of fact,
3. the mistake is material, AND
4. the person asserting the mistake did NOT bear the risk of the mistake

NOTE: a mistake as to price/value is NOT considered material

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9
Q

unilateral mistake

A

generally NOT a valid defense. occurs when:
1. a mistake by one party,
2. that is unknown to the other party,
3. concerning a basic assumption,
4. has a material effect

BUT: a K is VOIDABLE by mistaken party if:
1. one party knew or had reason to believe of the other’s mistake, OR
2. the mistake makes the K unconscionable
Eg, construction bid

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10
Q

misunderstanding (ambiguity as to K term)

A

a K is NOT formed when:
1. a K term is material & ambiguous,
2. the parties have different subjective meanings of a K term, AND
3. neither party is aware of the ambiguity

  • If one party is aware of meaning understood by other party –> K is formed according to the understanding of the unaware party
  • if parties have same incorrect subjective meaning –> a K is formed according to that meaning

no meeting of the minds

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11
Q

fraudulent misrepresentation

A

K is VOIDABLE by injured party. Occurs when:
1. D knowingly,
2. made a false representation,
3. of material fact, AND
4. the other party reasonably relies on the misrepresentation to their detriment

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12
Q

non-fraudelent misrepresentation

A

K is VOIDABLE by injured party. Occurs when:
1. a party/agent,
2. makes a mistake of material fact,
3. that is false (no wrongdoing required)
4. inducing a K, AND
5. the other party reasonably relied on the misrepresentation to their detriment

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13
Q

non-disclosure

A

there is no duty to disclose UNLESS:
1. active concealment occurs,
2. a fiduciary relationship exists,
3. it’s necessary to correct an earlier mistake, OR
4. failure to correct a past statement from being misleading

NOTE: failure to disclose when required is deemed a misrepresentation

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14
Q

concealment

A

an affirmative act intended to keep another person from learning a fact
- concealment is deemed a misrepresentation

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15
Q

illegality

A

courts will NOT enforce illegal Ks
- Illegal subject matter: K is VOID
- Illegal purpose: K is VOIDABLE by the party who did NOT know of the illegal purpose

NOTE: performance is discharged if the K subsequently became illegal

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16
Q

public policy

A

courts will NOT enforce Ks that are contrary to public policy

17
Q

restrictive covenant

A

is ENFORCEABLE if reasonable in:
1. time,
2. geographic area, AND
3. scope of activity limited

  • if found unreasonable, most courts will enforce a restrictive covenant up to its reasonable limits
18
Q

unconscionability

A

occurs when the contract/term shocks the conscious of the court

Usually need BOTH:
1. Procedural unconscionability: unfair bargaining - one party has a suprioer bargaining position over the other party and uses that power to their advantage
2. substantive unconscionability: unfair terms - K contains terms that are obviously unfair and one-sided in favor of the party w/ superior bargaining power

19
Q

unconscionability discretion

A

if unconscionable, the court MAY
1. refuse to enforce the K,
2. enforce the K w/out the unconscionable term, OR
3. limit the application of the term

20
Q

statute of fraud (SOF)

A

Ks subject to SOF are NOT VALID UNLESS in writing

Writing Requirement: writing must:
1. be signed by the party to be charged,
2. reasonably identify the subject matter,
3. indicate a contract was made, AND
4. state the essential terms

21
Q

Ks subject to SOF

A
  1. Marriage Ks: promise in consideration of marriage
  2. Contracts that cannot by fully performed w/in 1 year: performance w/in 1 year MUST be impossible (think Superman)
  3. Land contracts: sale of land or crating an interest in land (eg, lease > 1 year)
  4. Executor/Administrator Promise: a promise to pay an estate’s debt from personal funds of the executor/administrator
  5. Sale of goods for $500+
  6. Suretyship: a promise to pay the debt of another
    - Main Purpose Exception: NO writing is required if the main purpose was to benefit the surety
22
Q

UCC SOF exceptions

A
  1. Merchant’s Confirmatory Memorandum: K between two merchants, a writing signed ONLY by the party enforcing it, AND other party did not promptly object w/in 10 days
  2. Goods accepted OR paid for: but ONLY applies for those goods, NOT whole K
  3. Custom Made Goods: seller made substantial start AND the goods are NOT suitable for sale in the ordinary course of seller’s business
  4. Judicial Admission/Acknowledgement: an admission during a judicial proceeding
23
Q

CL SOF exceptions

A
  1. Full performance
  2. Judicial acknowledgement: party admits to K in pleadings or testimony
  3. Estoppel: reasonable & foreseeable detrimental reliance (some jxs)
  4. Partial performance in land contracts: need two of the following:
    - made payment for land,
    - took posession of land, and/or
    - made valuable improvements to land