Exam #3 Flashcards
“Discharged” via Performance(5)
1) Strict (Complete) Performance
2) Substantial Performance
3) Timeliness of Performance
4) Discharge by Agreement
5) Discharge by Operation of Law
Jacobs & Young v. Kent
Substantial Performance, pipes in the house they build are up to par
Substantial Performance
Good faith effort
Minor Deviation
Substantially Same Outcome
Timeliness of Performance
Minor delay = not a breach… unless
“Time of the essence” Clause (JMU building Hartman Hall)
Discharge by Agreement(5)
1) Mutual Recission
- Both parties walk away
2) Novation
- One party asks to sub someone else in
3) Settlement
- One party agrees to do a little less than originally agreed
4) Accord & Satisfaction
- New way of payment (money –> tutoring)
5) Covenant not to sue
- No $ right now, pay in 2 months
Discharge by Operation of Law (5)
1) Material Alteration
- Added extra 0 to check
2) Statue of Limitations
- 5 years from contract end
3) Bankruptcy
4) Commercial Impractiability
5) Impossibility of Performance
- Cannot be done, Kolodin V. Valenti
Kolodin V. Valenti
Discharge by Operation of Law: Impossibility of Performance
- Agent of the singer has a restraining order against him so he physically cannot perform his contractual duties
Meeting of Minds
- Involuntary Consent
1) Mutual Mistake of Material Fact- Shipment with the same name but 2 months apart
2) Fraudulent Misrepresentation - Misrepresentation of material fact
- Intent to deceive
- Justified reliance
- Actual harm
3) Duress
4) Undue Influence - Someone lost their free will (hard to prove)
- Shipment with the same name but 2 months apart
Third Party Rights (3)
1) Assignment
- Transfer rights
- Non Assignment Clause (Can’t pass it onto another party)
2) Delegation
- Transfer duties
- Nondeligation Clause
- Personal contract
3) Third Party Beneficiaries
Remedies/Damages (5)
1) Compensatory Damages
2) Consequential Damages
(1+2: Duty to mitigate damages)
3) Punitive Damages
4) Nominal Damages
- $1, Debarment
5) Liquidation Damages
- Time of the Essence Clause
Equitable Damages (2)
1) Reformation
- Clerical Error
2) Speific Performance
- Unique goods: Art, Antiques, One of a kind memorabilia
UCC “Sale”
Passing of title = Risk of Loss
- Title passes at signing
- Nautilus Insurance v. Cheran Investments
Nautilus Insurance v. Cheran Investments
- Passing of title/Risk of Loss
- Guy bought a bar on a monthly payment over 2 years. After 2 months the bar burned down and he received insurance money over investors even though he only made 2 small payments
UCC “Goods”
Tangible & moveable property
UCC Merchant
- A person who deals in specific goods
- A Person who holds themselves out as having knowledge and skill about specific goods
- Guy who as a hobby fixes and sells cars
- Employer of Merchants
Merchant Firm Offer
Irrevocable until stated or within a reasonable time (~3 months)
UCC Offer
Indefinite Terms in valid offer
1) Missing price = Market price
2) Payment Timing = Default @ receipt of goods
3) Delivery = Pick up at sellers
UCC Acceptance
- Shipping goods
- Mirror image rule does not apply
Battle of the Forms
If the acceptance has new terms, terms are incorporated into the contract unless…
1) New terms materially alter the contract
OR
2) Offering merchant objects to new terms within a reasonable time
UCC Performance
- General Duties & Obligations
- Seller Specific Duties
- Buyer Specific Duties
UCC General Duties & Obligations
Buyer + Seller = Good Faith + Observe reasonable commercial standards
UCC Seller-Specific Duties
- Perfectly Tender Goods
- Exceptions
1) Right to cure (fix the problem)
- Notify intent to cure, meet original deadline
2) Substitute Carriers
3) Commercially Impractical
4) Destruction of goods
UCC Buyers Duties
1) Accept “PT” goods
- Absolute inspection rights
- Implied Acceptance = Failure to reject + use
2) Pay for PT goods
UCC Statute of Frauds
Written contract unless…
Oral Contract is enforceable if
1) Between merchants, if one party memorializes in writing
2) Specially manufactured goods after substantial start
3) One party admits to contract
4) Partial Performance
Seller’s Remedies for Breach (2)
1) Buyer accepts + Buyer doesn’t pay = Sue for damages
2) Buyer “Anticipatory Repudiation”
- Cover (try to sell somewhere else)
- Move on
Buyer’s Remedies for Breach (4)
1) Seller delivers non-conforming goods
- Accept goods
- Cover
- Move on
2) Seller goes bankrupt
- Sue for Insolvency (S.O.L)
3) Seller refuses to tender unique goods
- Specific Performance
4) Seller delivers “Difficult to discover” non-conforming goods
- Discover in “reasonable time” + notify in “reasonable time”
- Fitl v. Strek
Fitl v. Strek
Difficult to discover non-conforming goods
- Mikey Mantel’s rookie card, discovered 2 years after the sale it was fake, considered a reasonable time
Title Warranties (3)
1) Warranty of good title
2) Warranty against Liens
3) Warranty against infringements
Express Warranties (3)
- Overt Promise = “Basis of Bargain”
1) Statement of fact
2) Samples and floor models (CostCo)
3) Descriptions & Labels
Implied Warranties (3)
1) I.W. of merchantability
2) I.W. of fitness for a particular use
- Known + Specific + non traditional
3) I.W. of trade custom
- The car has all its fluids when you buy it
- Warranty Disclaimer
Cavect Emptor
- 1960s
- Buyer Beware
- Mcfarland v. Newman
McFarland v. Newman
- Cavect Emptor, guy bought a sick horse and tried to sue but didn’t bring the horse to a vet to check before he bought
Strict Products Liability (3)
1) Manufacturing defects
- Deviated from specifications
2) Design defects
- Error in specifications
- Riley v. Ford (rod doors)
3) Inadequate warnings
Riley v. Ford
Design defects, Ford knew the rod doors were opening during crashes and could’ve fixed it for cheap but decided not to
Defenses to Strict Product Liability (4)
1) Assumption of risk
2) Misue of product
3) Commonly known dangers
4) Comparative Neglience
Chapter 7 Bankruptcy: Name + Steps (8)
- Liquidation
- All “Persons” except Banks + Insurance Companies
1) Petition Court/Declare Bankruptcy
2) Period of Court Review- Substantial abuse
- Means test
3) Order of relief
4) Automatic Stay - Excluding domestic support
5) Estate in Property - Homestead exception
- Primary vehicle
- Personal items (<$12250)
- Trade Tools (<$2300)
6) Constructive Control of Estate - Court-appointed trustee
7) Distribute Liquidated Remainder
8) Discharge of Remaining Debts - Excluding domestic support and back taxes
- Student loans = undue hardship
Involuntary Chapter 7
Owe creditors $15325 + Not paying + Actively avoid
- Petition for involuntary bankruptcy
Chapter 11 Bankruptcy: Name + Steps (4)
- Reorganization
- Business Entities + High net worth people
1) File petition
2) Court review- Debtor-in-Possession
3) Debtor & Creditor negotiate repayment plan
A) Bank
B) Bondholders
C) Suppliers
D) Shareholders
- Judicial Cram down
- Usually $.29 per $1
4) Discharged
- Debtor-in-Possession
Chapter 12 Bankruptcy: Name
Family Farm & Fisheries
Chapter 13 Bankruptcy: Name
- Fixed Income
1) Negotiate 3-5 year repayment plan
Contract Law
Legally enforceable agreement between parties
- A party who breaks the agreement will have to pay damages
Elements of Valid Contract (5)
1) Offer
2) Acceptance
3) Consideration
4) Capacity
5) Legality
Contract: Offer
- A promise of commitment to do or refrain from doing some future action
- Validity to offer
1) Objective intent of the promisor
2) Definite terms
3) Communicated to a third party
- Oral + Written
Validity of the Offer
Objective Intent
- If the offer seems sincere to an objective observer, it is an offer
- Lucy v. Zehmer
- Panhandle Realty LLC v. Olins
Definite Terms
- The offer must including sufficient detail for a court to be able to enforce the contract
- Venture Associates Corp v. Zenith Data Systems Corp
Communicated to a Third Party
- Any written or oral offer delivered to another party
Lucy v. Zehmer
Drinking at a bar together, Lucy ends up writing down $50,000 farm sale on Napkin, Didn’t seem like he was joking to people standing nearby
Objective intent
Panhandle Realty LLC v. Olins
Attempt to back out of lease, tried to say they were still negotiating so he wouldn’t have to pay
Objective intent
Venture Associations Corp v. Zenith Data Systems Corp
Letter of intent for merger, Definite terms
Terminating an Offer Prior to Acceptance (7)
1) Revocation
2) Rejection
3) Counter Offer
- Any proposed change in terms = a new offer
4) Time Lapse
- Stated deadline or after “reasonable time period”
5) Subject Matter Destroyed
6) Party that made the offer dies
7) Change of law makes the offer illegal
- Surrogacy contracts
Contract: Acceptance
1) Acceptance
- Recipient of the offer agrees to the terms via words of conduct (nodding + thumbs up + tossing keys)
2) Mirror Image Rule
- Acceptance must be unequivocal or it is a rejection of the offer (counter offer)
3) Mailbox Rule
- Acceptance is valid upon dispatch, not upon receipt (you have accepted the offer once you drop the letter in the mailbox or click send)
- The Regretful Seller Paradigm
4) Express Authorization
- It the offer specifies a method of acceptance, that is the only way one can accept the offer
Bilateral Contracts
1) A contract that the parties form once they exchange promises to perform the contract
2) Majority of contracts
Unilateral Contracts
1) A contract that one party can only accept by actually performing the terms of the offer (A future promise does not count)
2) The Smokey and the Bandit Paradigm
