Formation

Question 1

For unilateral contract, does the offeree have to give notice of acceptance (performance)

Answer 1

generally no unless offeree has reason to know that the offeror would not learn of performance within a reasonable time

Question 2

What types of offers are irrevocable?

Answer 2

1. standard option supported by consideration
2. firm offer (no need for consideration)
3. part performance

Question 3

What is an accord and satisfaction?

• in context of disputed monetary claim: is consideration required?
• in context of a negotiable instrument

Answer 3

when pt to K agrees to a different performance in satisfaction of the other pt’s existing duty

-disputed monetary claim: yes required, can be the honest dispute or foregoing a defense or different form of payment

• negotiable instrument: discharge when the person against whom claim is asserted gives a gf check, indicating on back that it is in satisfaction of the claim and the claimant cashes it.
• -> NOT discharged if returned w/i 90d

–> if an org, not effective if not written to a person, place, or office designated;

Question 4

Under what contract can a nonbreaching party sue in an accord and satisfaction? When is the original contract discharged?

Answer 4

if breach of A&S, under either K.

Discharge upon perf of satisfaction

Question 5

As between nonmerchants, if the offeror falsely tells the offeree that the item has been sold, does this revoke the offer? why?

Answer 5

yes. because it shows intent not to enter a contract

Question 6

when is a quasi-K formed?

Answer 6

(i) the plaintiff has conferred a “measurable benefit” on the defendant; (ii) the plaintiff acted without gratuitous intent; and (iii) it would be unfair to let the defendant retain the benefit because either the defendant had an opportunity to decline the benefit but knowingly accepted it, or the plaintiff had a reasonable excuse for not giving the defendant such opportunity, usually because of an emergency

Question 7

can liquidated damages used to punish be enforceable?

Answer 7

no

Question 8

what is an offer?

Answer 8

obj manifestation of present intent to enter into an agr that creates power of acceptance in the offeree
-present intent to be bound
-definite terms
–CL: essential terms (i.e., parties, subject matter, price, and quantity term)
UCC: quantity term
-communicated to the offeree and offeree reasonably interprets as offer

-

Question 9

when must offeree give notice of acceptance?

• bilaterl
• unilateral

when is an offeree not required to give notice?

Answer 9

§ Bilateral: acceptance by return promise or starting perf
□ CL: mailbox rule
□ UCC - if accept by beginning performance, then must give notice within reasonable time otherwise offer lapses
§ Unilateral:
□ Acceptance by full perf
□ offeree is not required to give notice after performance is complete unless he has reason to know the offeror would not learn of performance in a reasonable time or offer requires notice
□ If notice is required but not provided, offeror’s duty is discharged unless
® Offeree reasonable diligence to notice
® Offeror learns of perf w/I reasonable time
Offer indicates notice of acceptance is not required

Question 10

what happens in K b/t merchants and acceptance comes with new terms?

Answer 10

becomes part UNLESS
® Original offer expressly limits acceptance to offer terms

				® New terms materially alter original terms, e.g., arbitration clause, disclaimer, materially shorten deadline, change usage of trade or past method of dealing, OR Acceptance is not definite and seasonable (e.g., acceptance made conditional on offeror’s assent to new terms)

Question 11

what happens in K b/t merchants and different terms?

Answer 11

Conflicting terms are omitted from K; gaps left are filled by UCC default terms (see § V-a-v)
NOT voided

Question 12

what are elements of promissory estoppel?

Answer 12

§ 1) Specific promise of future gratuitous action.
§ 2) promisee’s action was reasonably foreseeable to promisor,
§ 3) reliance induced by the promise and not other factors,
4) injustice without enforcement (willfulness of breach, relative pt positions, detriment, alternatives)

Question 13

what are the elements of qusai K?

Answer 13

Where Π has conferred a benefit upon Δ under circumstances where no enforceable K results, ii) the plaintiff acted without gratuitous intent; and (iii) it would be unfair to let the defendant retain the benefit because either the defendant had an opportunity to decline the benefit but knowingly accepted it, or the plaintiff had a reasonable excuse for not giving the defendant such opportunity, usually because of an emergency

Question 14

what are defenses to formation?

Answer 14

Mistake/Absence of mutual assent
Incapacity
Misrepresentation
Fraudulent nondisclosure
Duress
Undue influence
Unconscionability:
Public policy

Question 15

what is the defense of mutal mistake? unilateral?

Answer 15

§ (1) mistake concerns a basic assumption of K,
□ market conditions and financial ability are NOT considered basic assumptions
§ (2) mistake has a material effect on agreement, and
(3) affected pt did not assume the risk of the mistake (assumption commonly occurs when one pt is in position to better know the risks)

Question 16

what is the defense of incapacity? when does it not apply?

Answer 16

infancy (under 18) or mental incompetence at the time of K

Question 17

what is the defense of misrepresentation?

Answer 17

1. untrue assertion of fact
2. that is knowing or reckless OR with intent to mislead
3. that person would justifiably rely on
4. and that induce such reliance

Question 18

what is the defense of nondisclosure?

Answer 18

affirmative conduct to conceal = assertion that the fact does not exist

mere nondisclosure is that if

1. necessary to prevent prior statement from being misrep
2. to correct mistake
3. duty to disclose

Question 19

what is the defense of duress?

Answer 19

improper threat that deprives pt of meaningful choice.
-improper threat: criminal or civil action or threat to breach
-no meaningful choice: no reasonable alt
VOID if physicial threat; VOIDABLE for others

Question 20

what is the defense of undue influence?

Answer 20

1) Unfair persuasion, 2) against a vulnerable party (aged, ill).

Question 21

what is the defense of unconscionability?

Answer 21

he test is whether in light of the general commercial background and needs of the particular parties, K is so one sided as to be unconscionable under the circumstances at time of formation that no party would not have entered it

Question 22

what is the defense of public policy?

Answer 22

s illegal or crime (bribery, prostitution, murder) or performance itself is a tort

Question 23

what are the exceptions to sof for sale of goods? suretyship? real property?

Answer 23

			□ Merchant confirmation: If a merchant sends written confirmation after oral agreement w/in reas. time, binds recipient if reason to know of contents and no written objection w/in 10 days of receipt
			□ Specially manufactured goods: (cannot be sold to others in the seller's business)
			□ Part payment,
			□ Receipt and acceptance Admission in court

prop EXCEPTION: part performance – improvements, payments, evidence of K in existence/reliance

Question 24

when is writing not required under UCC?

Answer 24

Writing signed by charged party not required for sale of goods if SWAP:
□ Specially manufactured goods: Goods manufactured to buyer’s specs, substantial reliance by seller
□ Written confirmation by merchant (merchant’s confirmation): Between merchants, signed written confirmation of an oral agreement sent w/in reasonable time will also bind recipient, if recipient has reason to know of confirmation’s contents (quantity) + does not object in writing w/in 10 days + actually received by the party to be charged
□ Admission in court up to quantity admitted
Partial performance, e.g., payment made & accepted, goods received & accepted

Question 25

in offer for prompt shipment, what happens if seller sends nonconforming goods as accom?

Answer 25

it is both counteroffer and breach
buyer can accept or reject
if reject, no K