EXAM Flashcards
What is the Statute of Frauds?
The Statute of Frauds makes certain types of contracts unenforceable unless that are in writing.
Even if you had an enforceable oral contract it becomes unenforceable
What types of contracts does the statute of frauds cover?
i. A promise by an executor or administrator to pay estate debts out of his own money, o ii. A promise to answer for the debt, default, or miscarriage of another (guarantee), o iii. An agreement made in consideration of marriage, o iv. A contract dealing with interests in land, o v. An agreement not performed within one year of its making, and o vi. Ratification of debts incurred while a minor.
Part Performance and requirements for oral contract recognition
If the plaintiff can show that performance of the contract has begun and he has relied on its existence, the court would accept that performance as evidence of the contract without writing.
However the following conditions have to the met.
- It must be a contract on land
- The acts of performance must suggest quite clearly the existence of a contract dealing with the land in question (no ambiguity)
- Activities of either the plaintiff or the defendant may be considered acts of performance but the plaintiff must have
relied on the existence of the contract and suffered a loss if the contract is not enforced.
What is parol Evidence?
During the negotiation process, emails, phone messages, draft documents, faxes, and letters may be created and exchanged. These documents and recordings are collectively known as parol evidence.
What is the parol evidence rule?
The parol evidence rule puts a limit on what uses can be made of parol evidence which can be used to interpret ambigious words.
A court will admit parol evidence about a missing term when o the written agreement does not contain the whole agreement; o the missing term is part of a subsequent oral agreement; o the missing term is part of a collateral agreement for which there is separate consideration; or o the missing term is a condition precedent to the written agreement.
What are the three types of Remedies for a breach in contract?
o a. damages o b. equitable remedies—specific performance, injunction, and rescission o c. quantum meruit
What are the prerequisites to be awarded damages?
- Loss must flow from the breach
2. the plaintiff must have done their best to mitigate these damages
Liquidated Vs. Penalty clauses
liquidated damages are damages specified in the contract that if a breach were to occur, the injured party would get x amount which could be less or more than the actual damage but it gives parties a piece of mind to know their liability
penalty clauses on the other hand are a term that specifies an huge amount of money that is more so intended to force or scare parties into performance and courts will not often require that exact amount for damage payment
What are the types of damages
- exception damages (may include opportunity costs)
- Consequential Damages
- general damages
- Reliance Damages
- Punitive Damages
prerequisite for equitable remedies
First, the court must be satisfied
that damages will not adequately
compensate the loss;
and the plaintiff…
- Must come with ‘clean hands’
- the plaintiff must not delay in taking action
- a court will refuse to intervene on equitable principles when to do so would negatively affect an innocent purchaser.
- the plaintiff must have paid reasonable consideration for the defendants promise.
- Finally, a plaintiff must ordinarily be a party against whom the remedy would be awarded were he the defendant instead.
Types of equitable Remedies
- Specific performance
- Injunction (requiring a negative covenant not always needed in writing)
- Recession
- Quintum Meruit
Difference between Business and affairs
- the affairs are the internal relationships and arrangements among those responsible for running a corporation
- the business involves the external relations between a corporation and those who deal with it as a business enterprise
What are the three basic groups that are common within all corporations
- Shareholders
- Directors
- officers
What is the role of Directors?
Directors manage or supervise the management of the business and affairs
of the corporation. There most
important powers are…
- To issue shares
- To declare dividends
- To call meetings of shareholders
- To delegate responsibility and appoint officers.
Appointment and removal of a director
A simply majority (ordinary resolution) is enough for the appointment or removal of a director unless otherwise stated (cumulative voting)
- they must be 18 years of age, of sound mind and have never declared bankruptcy.
What is an officer?
they are responsible for the day to day hands on tasks of running the corporation and are appointed by the directors who define and designate their responsibilities
What are the duties of Directors and Officers?
o 1. Every director and officer of a
corporation in exercising their
powers and discharging their duties
shall
▪ a. act honestly and in good faith with a view to the best interests of the corporation; and
▪ b. exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
o 2. Every director and officer of a
corporation shall comply with this
Act, the regulations, articles,
bylaws and any unanimous shareholder
agreement.
What duties are owed?
A fiduciary duty and a Duty of care, Diligence and Skill.