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My Contracts > General K Stuff > Flashcards

General K Stuff Flashcards

1
Q

Pre-existing Legal Duty

A

the promise to perform or the performance of an existing legal duty is not be sufficient consideration

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2
Q

What Law Applies?

A

Common Law OR

UCC Article 2 (Sale of Goods)

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3
Q

When Does Article 2 Apply?

A

Sale of Goods

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4
Q

Merchants for Article 2 Application

A

hold themselves out as experts in goods or regularly deal in the goods

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5
Q

What is needed for k formation (mutual assent)?

A

Offer, acceptance, consideration

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6
Q

What is an offer?

A

a promise, definite terms, and communication to the offeree;

must create a reasonable expectation in the offeree that the offeror is willing to enter a k w/the offered terms.

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7
Q

What is acceptance?

A

Offeree must have knowledge of the offer and manifested assent to the terms.
CL: mailbox rule
UCC (battle of the forms)

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8
Q

What is consideration?

A

a bargained-for exchange of something of legal value

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9
Q

What constitutes mutual assent?

A

offer and acceptance

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10
Q

Article 2 Merchant Firm Offer Rule

A

a merchant offers to buy/sell goods in a signed writing AND the writing gives assurances that it will be held open, the offer is not revocable for lack of consideration during the time stated or for a reasonable time (no more than 3 months)

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11
Q

How may the Offeror Terminate the Offer?

A

by revocation:
direct - an offeror may revoke the offer by directly communicating the revocation with offeree
*it is effective when received
OR
indirect - if offeree receives: 1) correct information, 2) from a reliable source, 3) of acts by offeror that would indicate to a reasonable person that the offeror no longer wishes to make the offer
e.g.: offeree hears from a friend that offeror has already sold her car to someone else

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12
Q

How may the Offeree Terminate the Offer?

A

by rejection:
express, counteroffer, or lapse of reasonable time
it is effective when received

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13
Q

Mere Inquiry

A

an inquiry will not terminate the offer when it is consistent with the idea that the offeree is keeping the original proposal under consideration
**test is whether a reasonable person would believe the original offer had been rejected

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14
Q

Limitations on Power to Terminate

A

Offeror: option k, merchant’s firm offer, detrimental reliance, beginning performance on unilateral k

Offeree: generally cannot reject if already accepted

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15
Q

Bilateral K acceptance of offer

A

may be accepted in 2 ways:

1) by a promise to perform OR
2) by beginning performance

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16
Q

Acceptance must be Communicated - EXCEPTION

A

generally acceptance needs to be communicated UNLESS:

1) offer provides acceptance need not be communicated
OR
2) if silence has been accepted through prior dealings or trade practices

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17
Q

Offer to Buy Goods for Current/Prompt Shipment

A

Article 2 - an offer to buy goods for current or prompt shipment is construed as inviting acceptance either by promise to ship or by current or prompt shipment of conforming or nonconforming goods

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18
Q

Shipment of Nonconforming Goods

A

is an acceptance creating a bilateral k as well as a breach of k UNLESS the seller seasonably notifies the buyer that a shipment of nonconforming goods is offered only as an accommodation

this only applies when shipment is used as the form of acceptance (does not apply to promise to ship)

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19
Q

Option k

A

CL: requires consideration
UCC (Firm Offer Rule): offer by a merchant in a SIGNED writing, which by its terms, gives assurance it will be held open is irrevocable during the time stated (if no time stated - 90 days)

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20
Q

What is a Material Change?

A

substantially affects the economic risks or benefits of a k
Liability
Money
Damages

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21
Q

Battle of the Forms

A

1) if offeree accepts the offer and at same time makes material change or adds additional term(s) to the offer, there is a k but the terms of the original offer will control
2) if offeree accepts the offer and at same time makes non-material change, it will be incorporated UNLESS the offeror objects within a reasonable time

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22
Q

Remedies for Breach with Accommodation

A

1) Buyer can accept non-conforming goods and pay the k price
2) Buyer can timely reject and sue for damages
3) Buyer can accept in part and reject in part

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23
Q

What is an Accommodation?

A

When a merchant seller accepts an offer and breaches at the same time because the seller does not have exactly what buyer ordered
Seller MUST give buyer notice that non-conforming goods are meant as an accommodation (treat the non-conforming shipment as a counteroffer)

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24
Q

What is the Surety Exception?

A

When the main purpose of the guarantor in making the promise was to benefit the guarantor, then NO SoF writing is required

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25
Q

When is trade usage admissible?

A

to explain or supplement the terms of a k

Parol Evidence EXCEPTION

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26
Q

When does a TP vest?

A

when the third party:

1) learns of the k and ASSENTS
2) learns of the k and RELIES
3) learns of the k and SUES

27
Q

What is the Buyer’s standard remedy under the UCC?

A

K Price - Cover Price (exercise GF) or FMV (if not covered)

28
Q

May TP assignments be oral?

A

Yes and consideration is not required

29
Q

What is an Accord?

A

a new agreement between parties who are already under k together - this arises when there is some dispute between the parties regarding the original agreement

30
Q

What is Satisfaction?

A

performance of the new agreement

31
Q

What does an Accord do?

A

It suspends the original agreement until the accord comes due
**it does NOT discharge the original k, just suspends it until it comes due or is satisfied

32
Q

How are Requirement k measured?

A

by a buyer’s good faith needs

33
Q

Lost Profits

A

Volume sellers/buyers

Standard remedy: K price - Resale price

34
Q

When may an Offeror terminate an offer?

A

may revoke after the offer but BEFORE the offeree accepts

35
Q

Perfect Tender Rule

A

terms of sale of goods are enforced exactly - if nonconforming, Buyer may:

1) reject w/in reas. time of delivery
2) accept
3) accept in part

36
Q

Right to Cure (UCC)

A

seller may cure and make a conforming delivery after seasonable notice

37
Q

Right to Reject (UCC)

A

Buyer may inspect the goods purchased and reject even after payment but may not cancel (seller –> cure)

38
Q

Expectation Damages

A

causation (but for), foreseeability, certainty (not too speculative), unavoidability (duty to mitigate)

39
Q

Consequential Damages

A

related damages reasonably foreseeable at K formation

40
Q

Reliance Damages

A

expenditures made in reliance of K (if expectation uncertain but can get both in a land sale k)

41
Q

Liquidated Damages

A

if damages are difficult to ascertain at formation and the LD clause is a reasonable forecast of damages

42
Q

Restitution Damages

A

given to prevent unjust enrichment retained by D

K fails after partial/complete performance

43
Q

Replevin

A

to seek the return of the item itself as opposed to money damages

44
Q

What are the grounds for rescission (no mutual assent)?

A 
Mistake
Misrepresentation
Undue Influence
Lack of Capacity
Failure of consideration
Illegality
45
Q

What is reformation used for?

A

changes written K so as to conform w/parties’ original understanding

46
Q

When may reformation be used?

A

Mistake (except when non-mistaken party should have known of the mistake)
Misrepresentation

47
Q

UCC Standard Seller Damages

A

K Price - resale price (exercise GF) or FMV (if not resold)

48
Q

Parol Evidence

A

limited to words of the parties - written or oral - that comes before the integration of k

49
Q

What are non-monetary remedies (in rem)?

A 
Specific performance
rescission
reformation
reclamation
Rights of Good Faith Purchaser in Entrustment
50
Q

Rights of Good Faith Purchaser in Entrustment

A

owners entrusts goods to a person who sells that kind of good and the person wrongfully sells it to a TP
-this cuts off the original owner’s rights

51
Q

What are the available monetary damages?

A

Expectation
Reliance
Restitution

52
Q

What are the additional damages available?

A

Consequential
Incidental
Liquidated

53
Q

Limitations on damages?

A

Mitigation (P must reasonably avoid or lessen losses)

Certainty (loss proved to a reasonable certainty)

54
Q

Consequential Damages

A

foreseeable damages from Pd special circumstances, only if D had reason to know of of special circumstances

55
Q

Incidental

A

cost for finding replacement

56
Q

Liquidated Damages

A

k fixes amt of damages - valid if difficult to ascertain and reasonable forecast

57
Q

Assignment

A

one party transfers her rights under a k to another party
–if k states that rights are not assignable –> assignment is still valid;

assignor is liable for breach but assignee who has no knowledge of prohibition can enforce UNLESS k states ALL assignments are VOID

58
Q

Assignment for Consideration

A

no recovery from the obligor
Assignor implies warranty that right exists, right is not subject to any defenses;
assignor won’t do anything to impair value of assignment -
First assign for consideration wins

59
Q

Delegation

A

allowed unless k prohibits, k calls for very special skills, or k has special reputation
If TP does not perform, Delegator remains liable,
delegatee liable only if she receives consideration from delegation party, in which delegatee is liable to delegating party and obligee

60
Q

Obligor

A

a person/entity who owes an obligation to another

61
Q

Obligee

A

the party to whom the particular duty or obligation is owed

62
Q

Common law bars an assignment when

A

it substantially changes the duties of the obligor

63
Q

Gratuitous assignment

A

may be freely revoked - last assignee wins

My Contracts (3 decks)

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