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100 > K > Flashcards

K Flashcards

1
Q

k formation

A

offer
acceptance
consideration

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2
Q

offer

A

outward manifestation of intent to enter into a k

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3
Q

offer

A

intent and
specific terms

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4
Q

ads

A

not an offer
invitation to an offer

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5
Q

termination of an offer

A

death
lapse of time
rejection
counteroffer
revocation

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6
Q

direct revocation

A

retraction of an offer by the offeror

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7
Q

indirect revocation

A

person receiving offer learns another deal was made

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8
Q

offers are revocable
only three instances when an offer is not revocable

A

1) option k
2) UCC firm offer
3) unilateral k

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9
Q

option k

A

1) promise to keep offer open
2) additional consideration

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10
Q

UCC firm offer

A

1) merchants
2) signed writing by merchant

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11
Q

firm offers can only stay open (irrevocable) for a maximum (if no time stated)

A

of 3 months

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12
Q

unilateral k

A

a promise for an act

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13
Q

bilateral

A

a promise for a promise

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14
Q

unilateral k becomes irrevocable when

A

performance begins

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15
Q

acceptance

common law mirror image rule

A

acceptance must mirror the offer

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16
Q

how to accept an offer

A

silence
performance
mail

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17
Q

common law mailbox rule

A

acceptance is effective when sent

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18
Q

mailbox rule exception

A

if rejection is sent 1st, then an acceptance is sent, whichever arrives first wins

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19
Q

UCC- ACCEPTANCE IS CONSTRUED LIBERALLY

EXCEPTIONS

A

1) materially change terms of K
2) objection to the change of a term in a reasonable amt of time
3)offer limits the acceptance

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20
Q

consideration

A

bargain for exchange

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21
Q

illusory promise

A

party making the offer retains control

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22
Q

gifts

A

promise to give a gift is NOT valid consideration

already gave gift IS valid consideration

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23
Q

PAST OR MORAL CONSIDERATION

A

is NOT valid consideration

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24
Q

Promise to pay debt barred by SOL

A

is valid consideration

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25
Q

promise to pay debt discharged by bankruptcy

A

is valid consideration

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26
Q

forbearance to sue

A

is valid consideration

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27
Q

promissory estoppel

A

detrimental reliance

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28
Q

accord and satisfaction (3 hypos)

A

1) agree theres a debt, partial payment, “paid in full” cashed check= still owe full amt
2) (dispute) deal to reduce debt= dont owe full amt
3) doubt tht i owe money but pay partial amt anyways; can u recover on remaining amt? no

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29
Q

age

A

a k w a minor is voidable at option of minor

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30
Q

mental illness

A

k is void

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31
Q

duress

A

wrongful threat

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32
Q

undue influence

A

uneven bargaining position

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33
Q

unconscionability

A

result itself will be unfair

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34
Q

illegal

A

unenforceable

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35
Q

unilateral mistake

A

one party is mistaken
generally not a defense unless
1) other party knew of mistake
2)clerical error

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36
Q

mutual mistake

A

both parties mistaken about material term

remedy: rescission

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37
Q

intentional misrepresentation

A

knew/should have known of falsity w intent to induce reliance

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38
Q

negligent misrepresentation

A

causes the innocent party to detrimentally rely

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39
Q

non compete clause

A

reasonable under the circumstances

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40
Q

statute of frauds

A

MYLEGS

1)marriage
2)cannot be performed in a yr
3)land, including leases (part performance)
4)executory
5)guarantor; guaranteeing debt of another
6) sale of goods 500$ or more (part performance exception)

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41
Q

part performance exception

A

1) some payment
2)either take possession of land or make improvements

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42
Q

exception to guarantor k

A

1) look to main purpose/motive
2) if self serving, k does not need to be in writing

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43
Q

sale of goods over $500 exception

A

1) partial performance will take k out of SOF
2) merchant confirmation
-confirmation signed by sender
-includes the quantity
-does not object w/in 10 days

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44
Q

legal writing

A

1) parties
2) subject matter
3) material terms
4)signed by party to be charged

45
Q

parol evidence

A

adding more terms to a k

must be information discussed prior to or at the time the parties entered the k

46
Q

final/complete integration

A

parol evidence is not admissible

47
Q

merger clause

A

final agreement b/w parties

parol evidence is not admissible

48
Q

exception to final/complete integration

A

terms added to clear up an ambiguity

49
Q

partial integration

A

parol evidence is admissible

50
Q

evidence tht explains or supplements tht original k

A

is admissible

51
Q

evidence tht contradicts or materially alters the k

A

is not admissible

52
Q

parol evidence is admissible to show

A

1) fraud
2) mistake
3) duress
4) condition precedent
5) course of dealing
6) trade custom

53
Q

NON CARRIER CASE- SELLER IS A MERCHANT

A

risk on seller until buyer takes possession

54
Q

NON CARRIER CASE- SELLER IS A NON MERCHANT

A

risk on seller until goods are tendered to buyer

55
Q

CARRIER CASE- SHIPMENT K

A

risk of loss shifts to buyer when goods delivered to carrier

FOB SELLER

56
Q

CARRIER CASE- DESTINATION K

A

risk of loss shifts to buyer when goods delivered to DESTINATION

FOB ANYTHING ELSE IS A DESTINATION K

57
Q

REQUIREMENTS K

A

u want to buy all the widgets tht i have
did i act in GOOD FAITH to get u all the widgets tht i could- if i did then im off the hook

58
Q

MODIFICATION: CHANGING MATERIAL TERM TO K

CL:
UCC:

A

CL: NEW CONSIDERATION IS NEEDED

UCC: NO CONSIDERATION, GOOD FAITH NEEDED

59
Q

MODIFICATION: CAN BE ORAL OR WRITTEN

UCC: CLAUSE PROHIBITING ORAL MODIFICATIONS ARE

A

VALID

60
Q

MUTUAL MODIFICATION

A

1) BOTH PARTIES AGREE TO MODIFY THE ORG TERMS
2) FAIR N REASONABLE UNDER CIRCUMSTANCES

61
Q

CONDITION PRECEDENT

A

EVENT HAPPENS PRIOR TO PERFORMANCE OF K

62
Q

CONDITION CONCURRENT

A

EVENTS OCCURS AT TIME OF PERFORMANCE OF K

63
Q

CONDITION SUBSEQUENT

A

EVENT OCCURS AFTER THE K

64
Q

CONDITIONS EXCUSED

A

1) WAIVER
2) BAD FAITH
3) AVOIDING FORFEITURE

65
Q

TIME IS OF ESSENCE

A

TIME IS NOT OF THE ESSENCE UNLESS STATED

IF STATED IT BECOMES A CONDITION TO THE K

66
Q

NON CONFORMING GOODS

THE BUYER

A

MAY REJECT
MAY ACCEPT
MAY REJECT IN PART N ACCEPT IN PART

67
Q

SELLERS RIGHT TO CURE

SELLER CAN CURE IF

A

1) SELLER HAD REASONABLE GROUNDS TO BELIEVE THE GOODS WOULD BE ACCEPTABLE

2) BY NOTICE +NEW TENDER WITHIN TIME FOR PERFORMANCE

68
Q

INSTALLMENT K

A

DELIVERING GOODS IN SEVERAL DIFF SHIPMENTS

69
Q

NON CONFORMING INSTALLMENT K

A

DEFECTIVE SHIPMENT CANNOT BE REJECTED IF THE DEFECT CAN BE CURED

70
Q

IMPRACTICABILITY

A

UNFORSEEN EVENT MAKES PERFORMANCE TOO DIFFICULT/EXPENSIVE

71
Q

IMPOSSIBILITY

A

NO ONE CAN PERFORM

72
Q

FRUSTRATION OF PURPOSE

A

THE CORE REASON FOR K IS NO LONGER PRESENT

73
Q

ANTICIPATORY REPUDIATION

A

1) BEFORE K PERFORMANCE
2)ONE PARTY UNEQUIVOCALLY REFUSES TO PERFORM

74
Q

DEMAND ASSURANCES

A

1) DEMAND WHEN DOUBTFUL ABOUT PERFORMANCE
2) PARTY MUST RESPOND IN A REASONABLE AMT OF TIME

UCC: DEMAND MUST BE IN WRITING

75
Q

RETRACTION OF REPUDIATION

PARTY CAN RETRACT UNLESS:

A
  • THE OTHER PARTY HAS SUED
    -THE OTHER PARTY HAS ACCEPTED THE REPUDIATION
    -THE OTHER PARTY HAS RELIED ON THE REPUDIATION
76
Q

LEGAL REMEDY

A

MONEY DAMAGES

77
Q

EXPECTATION DAMAGES

A

PUT PLAINTIFF IN POSITION IF K HAD BEEN PERFORMED

FORSEEABLE W REASONABLE CERTAINTY

78
Q

EXPECTATION DAMAGES AMT

A

(K AMT) - (MONEY RECEIVED/SAVED) + (ANY COSTS)

79
Q

RELIANCE DAMAGES

A

PUT PLAINTIFF IN POSITION HE WOULD HAVE BEEN PRIOR TO K

-UNREIMBURSED COSTS
-NO EXPECTATION DAMAGES

80
Q

RESTITUTION

A

GETTING BAC K ANY VALUE U ALREADY GAVE

-K PARTIALLY PERFORMED

-MEASURED BY MKT VALUE OF SERVICES

81
Q

CONSEQUENTIAL DAMAGES

A

FORSEEABLE COSTS BC OF BREACH

82
Q

LIQUIDATED DAMAGES

A

DETERMINED AT TIME OF K
ENFORCED IF REASONABLE

NOT A PENALTY

83
Q

QUANTUM MERUIT

A

THE BREACHING PARTY CAN RECOVER
(REASONABLE VALUE OF SERVICES)- (DAMAGES INCURRED)

84
Q

UCC SELLER DAMAGES; IF BUYER BREACHES, SELLER CAN RECOVER

A

1) GOODS DELIVERED AND ACCEPTED= K PRICE

2) SOME/NONE GOODS DELIVERED= K PRICE MINUS MKT PRICE

3) GOODS RESOLD=

K PRICE MINUS RESALE PRICE

ADDITIONALLY, INCIDENTAL DAMAGES

85
Q

LOST VOLUME SELLER

A

SELLER CAN SELL AS MANY WIDGETS AS POSSIBLE

86
Q

LOST PROFITS (LOST VOL SELLER)

A

EXPECTED PROFIT+ COSTS - PAYMENT FOR RESALE

87
Q

UCC BUYER DAMAGES

IF SELLER BREACHES, BUYER CAN RECOVER

A

1) PURCHASED REPLACEMENT GOODS= (K PRICE) - (COST OF NEW GOODS)

2) NO REPLACEMENT GOODS= (K PRICE)- (MKT PRICE AT TIME OF BREACH)

(INCIDENTAL DAMAGES)- (EXPENSES SAVED)

88
Q

EQUITABLE REMEDIES

A

RECOVERABLE WHEN REMEDY AT LAW IS INADEQUATE

89
Q

INJUNCTION

TO PREVENT IRREPARABLE HARM

A

EMPLOYMENT K
TRADE SECRETS
PROPRIETARY INFO

90
Q

RESCISSION

NO MEETING OF MINDS

A

MISTAKE
MISREP
DURESS
LACK OF CAPACITY

91
Q

3RD PARTY BENEFICIARY

A

TWO PPL HAVE A VALID K

THIRD PARTY WILL BENEFIT FROM K

92
Q

INCIDENTAL BENEFICIARY

A

3RD PARTY WHO INCIDENTAL BENEFITS FROM THE K

NEVER HAS RIGHTS UNDER K

93
Q

INTENDED BENEFICIARY

A

ORIG PARTIES INTEND TO BENEFIT A 3RD PARTY

MAY HAVE RIGHTS UNDER THE K

DO NOT NEED TO BE NAMED

94
Q

RIGHTS VEST WHEN

A

1) 3RD PARTY IS INFORMED OF RIGHTS AND ACCEPTS OR

2) 3RD PARTY LEARNS OF RIGHTS AND RELIES

95
Q

IF RIGHTS HAVE VESTED

A

THIRD PARTY HAS SAME RIGHTS AND DEFENSES AS ORG PARTIES

96
Q

ASSIGNMENT AND DELEGATION

A

TWO PPL HAVE A VALID K

ONE PARTY TRANSFERS OBLIGATION TO SOMEONE ELSE

97
Q

GENERAL RULE: ASSIGNMENTS AND DELEGATIONS ARE

A

VALID

98
Q

ASSIGNMENTS AND DELEGATIONS REQ PRESENT

A

INTENT TO TRANSFER

99
Q

NOVATION

A

A RELEASE OF THE ORIGINAL PARTY FROM THE K

100
Q

ANTI ASSIGNMENT CLAUSE

A

1) THE ASSIGNMENT IS STILL VALID BUT

2) THE ORIGINAL PARTY LIABLE FOR MONEY DAMAGES

101
Q

“VOID” MAGIC WORD THT MAKES AN ASSIGNMENT

A

INVALID

102
Q

ANTI DELEGATION CLAUSE

A

THE DELEGATION IS NOT VALID

103
Q

ASSIGNMENT EXCEPTIONS

A

1) NOT VALID IF IT WOULD MATERIALLY ALTER RISK OF PERFORMANCE

2) UNIQUE OR PERSONAL SERVICE
K CANNOT BE TRANSFERRED

104
Q

TERMS (A/D)

A

NEW PARTY CANNOT CHANGE K TERMS

NEW PARTY ONLY GETS THE ORIGINAL RIGHTS AND OBLIGATIONS

105
Q

TRANSFERRING MONEY

A

MUST GIVE NOTICE B4 OBLIGATED TO PAY

106
Q

WHEN A WRITTEN K FAILS TO EXPRESS THE ACTUAL AGREEMENT B/W BOTH PARTIES DUE TO A MUTUAL MISTAKE, THE CT MAY

A

REFORM THE WRITING TO B AN ACC EXPRESSION OF THE AGREEMENT

107
Q

THE MEANING OF A TERM SUPPLIED BY _____ WILL B OBSERVED W RESP TO A TRANSACTION B/W MEMBERS OF THE TRADE

A

USAGE OF THE TRADE

108
Q

A PERSON CANNOT AVOID A K FOR MUTUAL MISTAKE WHERE THT PERSON

A

BEARS THE RISK OF MISTAKE

109
Q

AN OFFEROR MAY GENERALLY REVOKE AN OFFER UP UNTIL THE MOMENT OF ACCEPTANCE

HOWEVER

DETRIMENTAL RELIANCE BY THE OFFEREE CAN TRANSFORM AN OFFER INTO

A

AN OPTION K

(FOR A REASONABLE LENGTH OF TIME)

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