Finals Flashcards
privity of a contract
the relationship that exists between parties to a contract
vicarious performance
a third party performs contractual obligations on behalf of the promisor who remains responsible for proper performance (subcontractor)
exception clause
a clause in a contract that exempts or limits the liability of a party
trustee
a person who is trusted
beneficial owner
a person who, although not the legal owner, may compel the trustee to provide benefits to him
trust agreement
the document that conveys property to a trustee to be used for the benefit of a third party beneficiary
resulting trust
a trust relationship recognized when the conduct of the parties demonstrates the intention to hold property for the benefit of the other
constructive trust
a trust relationship imposed by the court to prevent a party from being unjustly enriched by keeping property that should benefit another
undisclosed principal
a contracting party who, unknown to the other party, is represented by an agent
enurement clause
extends the rights and benefits to those inheriting from a party, succeeding the party, or taking an assignment from a party
4 exceptions to the privity of contract rules
- trusts
- insurance
- undisclosed principal
- contracts concerning land
principled exception
allows third parties to rely upon a contractual exemption clause when the parties to the contract intended to include them, and their activities come within the scope of the contract and the exemption clause
2 assignment contracts
first, create unperformed right, subsequently assigned to third party in second contract
assignment
the transfer by a party of its unperformed rights under a contract to a third party
choses in action
rights to intangible property such as patents, stocks, contracts that may be enforced in the courts
choses in possession
rights to tangible property that may be possessed physically
statutory assignment
an assignment that complies with statutory provisions enabling the assignee to sue the other party without joining the assignor to the action
equitable assignment
an assignment other than a statutory assignment
3 requirements for assignee to sue promisor without joining the assignor in the lawsuit (statutory assignment)
- assignment was absolute (unconditional and complete)
- it was in writing
- promisor received notice of it in writing
set off
the right of a promisor to deduct an existing debt owed to him by the promisee
executor
the personal representative of a deceased person named in his or her will
intestate
when a person dies without leaving a will
administrator
the personal representative of a person who dies intestate
negotiable instruments
a written contract containing a promise, express or implied, to pay a specific sum of money to a designated person or to “bearer”
minor breach
a breach of a non-essential term of a contract or of an essential term in a minor respect
major breach
a breach of the whole contract or of an essential term so that the purpose of the contract is defeated
3 ways a breach may occur
- express repudiation
- acting in a way that makes it impossible to perform promises
- failing to perform or poor performance
express repudiation
one of the contracting parties advises the other that it does not intend to perform as promised
anticipatory breach
an express repudiation that occurs before the time agreed for performance
substantial performance
performance that does not comply in some minor way with the requirements of the contract
quasi-contract
an obligation that may arise because one party has received an unfair benefit at the expense of the other
unjust enrichment
unfair benefit
drawing party
the contracting party that prepared the agreement
unconscionable terms
terms agreed to by parties of unequal bargaining power that give an unfair advantage to the powerful party over the weaker party
3 types af remedies
- damages
- equitable remedies
- quantum meruit
2 prereqs. for award of damages
- loss must flow from breach
2. damages must be mitigated
liquidated damages
an amount agreed on to be paid in damages by a party to a contract if it should commit a breach
penalty clause
a term specifying an exorbitant amount for breach of contract, intended to frighten a party into performance
expectation damages
an amount awarded for breach of contract, based on expected benefits or profits
consequential damages
secondary losses incurred by the non-breaching party that were foreseeable at the time of contracting
general damages
an estimated amount for intangible injury that a court may award
nominal damages
acknowledge a breach of contract where there is no real loss suffered
reliance damages
costs of expenditures and wasted effort reasonably made in preparation for performance
punitive damages
used in extreme conditions, used to punish the wrongdoer
5 prerequisites for equitable remedy - need all 5
- damages are inadequate
- claimant has clean hands
- no delay in seeking relief
- cannot negatively affect innocent third party
- sufficient consideration
specific performance
an order requiring a defendant to do a contracted-for act, usually to complete a transaction
injunction - negative convenant
court order restraining a party from acting in a particular manner; prohibits party from committing a breach
interlocutory injunction
temporary injunction preventing immediate harm from being done before full trial of the matter
rescission
restore parties to pre-contract positions
quantum meruit
the fair amount a person deserves to be paid for benefit conferred
5 common law damage remedies
- expectation damages
- consequential damages
- general damages
- reliance damages
- punitive damages
4 equitable remedies
- specific performance
- injunction
- rescission
- quantum meruit
execution
seize and sell a debtor’s chattel’s or arrange for a sale of his lands
garnishment
order requiring the debtor’s employer to retain a portion of their wages each payday to surrender to creditor
contempt of court
a finding by a court that a person has willfully refused to obey a court order and therefore be punished
bailor
owner of goods
bailee
party accepting possession of goods
gratuitous bailment
bailment where one party provides no consideration, no intention to create contractual relationship
bailment for value
contractual bailment, payed
lien
gives bailee right to keep possession of good until bailor pays
the right of sale
give bailee who has lien upon goods stored an additional right to sell the goods - publicly, reasonable amount of time, reasonable price - if the bailor does not end up paying
3 types of transporters (bailment)
- gratuitous carrier
- private carrier - specific goods, contractual
- common carrier - almost strict liability
3 defences of transporters (bailment)
- act of god
- inherent defect in goods - defect when carrier received it
- default by shipper -> bad packing done by shipper
dependent agent
an agent who acts exclusively, or mostly, for a single principal i.e. insurance agent
independent agent
an agent who carries on an independent business and acts for a number of principals i.e. lawyers
agency agreement
agreement between principal and agent whereby the agent undertakes to act on behalf of the principal
power of attorney
type of agency agreement authorizing the agent to sign documents on behalf of the principal
4 duties owed by agent to principal
- duty to comply with agency agreement
- duty of care
- personal performance
- good faith
2 duties owed by principal to agent
- compensate agent for effort
2. pay for agent’s expenses and losses
actual authority
the authority given expressly or implied to the agent by the principal
apparent authority
authority that a third party is entitled to assume that the agent possesses
holding out
representing by words or conduct that a person is one’s agent or has a particular authority
ratification of an agency contract
subsequent adoption by the principal of a contract made by an agent without authority
warranty of authority
a person who purports to act as agent represents that she has authority to contract on behalf of the principal