Este Flashcards
1
Q
Anticipatory Breach
A
Clear indication before performance is due that a party won’t perform.
2
Q
Anticipatory Breach - Effect
A
Gives the non-breaching party the option to sue immediately or wait until the performance date; Allows the non-breaching party to suspend their own performance.
3
Q
Anticipatory Breach - When can it be used?
A
To use Anticipatory breach we need A clear indication that a party will not perform the contract when performance is due.
4
Q
Arbitration
A
Dispute resolution by a neutral third party with a binding decision.
5
Q
Arbitration - Effect
A
The parties agree to resolve their disputes through arbitration instead of litigation; The arbitrator’s decision is binding and enforceable in court.
6
Q
Arbitration - Requirements
A
A valid arbitration agreement between the parties.
7
Q
Assignment
A
Transfer of contractual rights to a third party.
8
Q
Assignment - Effect
A
The obligor must now perform for the asignee and the asignor generally loses rights of contract.
9
Q
Assignment - Requirements
A
Present intent to transfer rights; Assignor’s rights must be assignable (not prohibited by contract/law).
10
Q
Assignor
A
Party who transfers contractual rights to another.
11
Q
Compensatory Damages
A
Monetary award to place non-breaching party in position if contract was performed.
12
Q
Compensatory Damages - Effect
A
A monetary award designed to compensate the non-breaching party for the loss of their bargain.
13
Q
Compensatory Damages - Requirements
A
The damages must be foreseeable; The damages must be proven with reasonable certainty; The non-breaching party must have made reasonable efforts to mitigate damages.
14
Q
Concurrent Condition
A
Each party’s duty is conditional on the other’s simultaneous performance.
15
Q
Concurrent Condition - Effect
A
Neither party is obligated to perform unless the other party is ready, willing, and able to perform.
16
Q
Concurrent Condition - Requirements
A
The parties are to perform their respective duties simultaneously.
17
Q
Condition Precedent
A
Event that must occur before a duty arises.
18
Q
Condition Precedent - Effect
A
No duty to perform unless and until the condition occurs.
19
Q
Condition Precedent - Requirements
A
The condition must occur before the performance obligation arises.
20
Q
Condition Subsequent
A
Event that terminates an existing duty to perform.
21
Q
Condition Subsequent - Effect
A
Terminates an existing duty to perform.
22
Q
Condition Subsequent - Requirements
A
The condition must occur after a duty to perform has arisen.
23
Q
Conditions
A
Contract terms making performance contingent on an event.
24
Q
Conditions - Effect
A
Affect the duty to perform; The happening or non-happening of a condition can trigger, suspend, or terminate a contractual obligation.
25
Conditions - Requirements
Must be clearly expressed (express) or implied from the nature of the agreement.
26
Covenant
Promise or agreement in a contract.
27
Covenant - Effect
Creates a contractual duty; Breach gives rise to a cause of action for damages.
28
Covenant - Requirements
Must be clearly stated (express) or implied from the contract.
29
Delegation
Transfer of contractual duties to a third party.
30
Delegation - Effect
Delegatee becomes obligated to perform the duty; The delegator remains liable if the delegatee fails to perform (unless there is a novation).
31
Delegation - Requirements
Delegator must intend to transfer the duty; Duty must be delegable (not involving special skill/trust).
32
Duress
Improper threat that leaves victim no reasonable alternative.
33
Duress - Effect
Contract is voidable by the victim.
34
Duress - Requirements
Coercion involving an improper threat (physical or economic); Coercion deprives the victim of free will; Victim has no reasonable alternative.
35
Equitable Remedies
Non-monetary remedies when damages are inadequate.
36
Equitable Remedies - Effect
A court order requiring a party to perform a specific act (specific performance) or refrain from performing a specific act (injunction).
37
Equitable Remedies - Requirements
The legal remedy (damages) must be inadequate to compensate the non-breaching party; The subject matter of the contract must be unique (for specific performance).
38
Force Majeure
Unforeseeable circumstances preventing contract fulfillment.
39
Force Majeure - Effect
Excuses performance or suspends performance during the force majeure event.
40
Force Majeure - Requirements
An event beyond the party's control; The event must be unforeseeable; The event must make performance impossible or impracticable.
41
Fraud & Misrepresentation
False statement of material fact to induce a contract.
42
Fraud & Misrepresentation - Effect
Contract is voidable; Injured party may seek rescission or damages.
43
Fraud & Misrepresentation - Requirements
False statement of material fact; Intent to deceive (scienter for fraud); Justifiable reliance; Causation; Damages.
44
Fraud in the Inception
Deception about the nature of the document being signed.
45
Fraud in the Inception - Effect
Contract is void.
46
Fraud in the Inception - Requirements
Deception regarding the nature of the document signed
47
Guarantor
Agrees to pay debt if primary obligor fails.
48
Guarantor - Effect
The guarantor becomes secondarily liable for the debt if the primary obligor defaults.
49
Guarantor - Requirements
The guaranty agreement must be in writing and signed; There must be consideration for the guaranty.
50
Incidental Beneficiary
Third party who indirectly benefits but is not an intended beneficiary.
51
Incidental Beneficiary - Effect
No right to enforce the contract.
52
Incidental Beneficiary - Requirements
Benefits from a contract, but without any contractual rights.
53
Incorporation by Reference
Making external document part of contract by referencing it.
54
Incorporation by Reference - Effect
Makes the incorporated document part of the contract as if it were fully set forth therein.
55
Incorporation by Reference - Requirements
Both parites must agree to the incorporation and the incorporated document must exist at the time of the agreement.
56
Injunction
Court order prohibiting or requiring specific actions.
57
Injunction - Effect
A court order prohibiting or requiring a specific action.
58
Injunction - Requirements
Irreparable harm & Inadequate legal remedy
59
Intended Beneficiary
Third party specifically meant to benefit from contract.
60
Intended Beneficiary - Effect
The intended beneficiary has the right to enforce the contract directly against the promisor.
61
Intended Beneficiary - Requirements
The intent to benefit the third party must be clear from the contract language or surrounding circumstances
62
Intentional Interference with Contractual Relations
Tort where a third party intentionally breaches performance of a contract.
63
Intentional Interference with Contractual Relations - Effect
The defendant is liable for damages caused by the interference.
64
Intentional Interference with Contractual Relations - Requirements
A valid contract between the plaintiff and a third party & The intentional interference with the contract.
65
Lease
Contract transferring possession/use of property for a period.
66
Lease - Effect
Grants the tenant the right to possess and use the property; Creates obligations for both landlord and tenant.
67
Lease - Requirements
(For leases over one year): Must be in writing; Must identify the parties, the premises, the term, and the rent.
68
Liquidated Damages
Predetermined damages amount in contract for breach.
69
Liquidated Damages - Effect
The non-breaching party is entitled to recover the agreed-upon amount of liquidated damages, regardless of the actual damages suffered (provided the clause is enforceable).
70
Liquidated Damages - Requirements
The damages must be difficult to estimate at the time of contracting & The amount of liquidated damages must be a reasonable forecast of the actual damages
71
Material Breach
Substantial violation defeating contract's purpose.
72
Material Breach - Effect
Discharges the non-breaching party from further performance; Gives the non-breaching party the right to sue for damages.
73
Material Breach - Requirements
A substantial failure to perform a material term of the contract.
74
Merger Clause
A legal provision in Contract Law that states that the terms of a contract are the complete and final agreement between the parties
75
Merger Clause - Effect
Strengthens the parol evidence rule; Demonstrates the parties' intent that the written contract represents the final and complete agreement.
76
Merger Clause - Requirements
Clear and unambiguous language indicating that the written contract is the complete and exclusive agreement of the parties.
77
Minor Breach
Non-material failure to perform.
78
Minor Breach - Effect
The non-breaching party is not discharged from the contract; The non-breaching party is entitled to damages caused by the breach.
79
Minor Breach - Requirements
A breach that is not material.
80
Misrepresentation of Law
False statement about the law.
81
Misrepresentation of Law - Effect
Contract may be voidable by the injured party.
82
Misrepresentation of Law - Requirements
(Modern View): Party making the misrepresentation possesses superior knowledge of the law OR a confidential relationship exists.
83
Mitigation of Damages
Non-breaching party's duty to minimize damages.
84
Mitigation of Damages - Effect
The non-breaching party cannot recover damages that could have been avoided through reasonable mitigation efforts.
85
Mitigation of Damages - Requirements
The non-breaching party must take reasonable steps to minimize the damages caused by the breach.
86
Mutual Mistake
Both parties mistaken about a material fact.
87
Mutual Mistake - Effect
Contract is voidable by the adversely affected party.
88
Mutual Mistake - Requirements
Mistake relates to a basic assumption; Mistake has a material effect; Party seeking avoidance didn't bear the risk.
89
Obligor
Party with a legal duty to perform under contract (promisor/debtor).
90
Obligor - Effect
Fulfilling the contractual duties leads to discharge; Failure to perform results in breach and potential liability for damages.
91
What does an **obligor** gave to do?
To perform the obligations outlined in the contract according to its terms.
92
Parol Evidence Rule
Bars evidence of prior/contemporaneous agreements contradicting written agreement if fully integrated.
93
Parol Evidence Rule - Effect
Eliminates the use of certain evidence that alters the written contract.
94
Parol Evidence Rule - Requirements
A fully integrated written contract (a complete and final expression of the parties' agreement).
95
Part Performance
Enforcing oral contract despite Statute of Frauds.
96
Part Performance - Effect
Allows enforcement of an oral contract that would otherwise be barred by the Statute of Frauds.
97
Part Performance - Requirements
Unequivocal acts that clearly indicate a contract; The acts must be consistent with the alleged contract and inconsistent with any other explanation.
98
Promissory Estoppel
Enforcing promises despite lack of consideration/writing.
99
Promissory Estoppel - Effect
Allows enforcement of a promise even without consideration or a written contract.
100
Promissory Estoppel - Requirements
A clear and unambiguous promise; Reasonable and foreseeable reliance; Detriment to the relying party; Injustice if the promise is not enforced.
101
Rescission
Canceling a contract and returning parties to their pre-contractual positions.
102
Rescission - Effect
Terminates the contract; Returns parties to their pre-contractual positions.
103
Rescission - Requirements
Prompt action after discovering the defect; Offer of restitution.
104
Specific Performance
Court order requiring breaching party to fulfill contractual obligations.
105
Specific Performance - Effect
The breaching party is ordered to perform the contract according to its terms.
106
Specific Performance - Requirements
A valid contract with definite and certain terms; Inadequate legal remedy; The subject matter of the contract is unique; Feasibility of enforcement by the court.
107
Statute of Frauds
Certain contracts must be in writing to be enforceable.
108
Statute of Frauds - Effect
Contracts within the Statute are unenforceable if not in writing.
109
Statute of Frauds - Requirements
A written contract or memorandum signed by the party to be charged; The writing must contain the essential terms.
110
Statute of Limitations
Time limit to file a lawsuit after a cause of action arises.
111
Statute of Limitations - Effect
Bars the right to sue if the lawsuit is not filed within the statutory period.
112
Statute of Limitations - Requirements
A lawsuit must be filed within the statutory period after the cause of action accrues.
113
Strict Performance
Exact compliance with all contract terms.
114
Strict Performance - Effect
Any deviation from the contract terms constitutes a breach.
115
Strict Performance - Requirements
The contract expressly requires strict performance; The nature of the contract is such that strict performance is essential.
116
Undue Influence
Excessive persuasion overcoming free will, often in relationships of trust.
117
Undue Influence - Effect
Contract is voidable by the victim.
118
Undue Influence - Requirements
A susceptible party; Opportunity to exert undue influence; Disposition to do so; A result showing influence (unfair advantage).
