K Flashcards
k formation
offer
acceptance
consideration
offer
outward manifestation of intent to enter into a k
offer
intent and
specific terms
ads
not an offer
invitation to an offer
termination of an offer
death
lapse of time
rejection
counteroffer
revocation
direct revocation
retraction of an offer by the offeror
indirect revocation
person receiving offer learns another deal was made
offers are revocable
only three instances when an offer is not revocable
1) option k
2) UCC firm offer
3) unilateral k
option k
1) promise to keep offer open
2) additional consideration
UCC firm offer
1) merchants
2) signed writing by merchant
firm offers can only stay open (irrevocable) for a maximum (if no time stated)
of 3 months
unilateral k
a promise for an act
bilateral
a promise for a promise
unilateral k becomes irrevocable when
performance begins
acceptance
common law mirror image rule
acceptance must mirror the offer
how to accept an offer
silence
performance
mail
common law mailbox rule
acceptance is effective when sent
mailbox rule exception
if rejection is sent 1st, then an acceptance is sent, whichever arrives first wins
UCC- ACCEPTANCE IS CONSTRUED LIBERALLY
EXCEPTIONS
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
consideration
bargain for exchange
illusory promise
party making the offer retains control
gifts
promise to give a gift is NOT valid consideration
already gave gift IS valid consideration
PAST OR MORAL CONSIDERATION
is NOT valid consideration
Promise to pay debt barred by SOL
is valid consideration
promise to pay debt discharged by bankruptcy
is valid consideration
forbearance to sue
is valid consideration
promissory estoppel
detrimental reliance
accord and satisfaction (3 hypos)
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
age
a k w a minor is voidable at option of minor
mental illness
k is void
duress
wrongful threat
undue influence
uneven bargaining position
unconscionability
result itself will be unfair
illegal
unenforceable
unilateral mistake
one party is mistaken
generally not a defense unless
1) other party knew of mistake
2)clerical error
mutual mistake
both parties mistaken about material term
remedy: rescission
intentional misrepresentation
knew/should have known of falsity w intent to induce reliance
negligent misrepresentation
causes the innocent party to detrimentally rely
non compete clause
reasonable under the circumstances
statute of frauds
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)
part performance exception
1) some payment
2)either take possession of land or make improvements
exception to guarantor k
1) look to main purpose/motive
2) if self serving, k does not need to be in writing
sale of goods over $500 exception
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
legal writing
1) parties
2) subject matter
3) material terms
4)signed by party to be charged
parol evidence
adding more terms to a k
must be information discussed prior to or at the time the parties entered the k
final/complete integration
parol evidence is not admissible
merger clause
final agreement b/w parties
parol evidence is not admissible
exception to final/complete integration
terms added to clear up an ambiguity
partial integration
parol evidence is admissible
evidence tht explains or supplements tht original k
is admissible
evidence tht contradicts or materially alters the k
is not admissible
parol evidence is admissible to show
1) fraud
2) mistake
3) duress
4) condition precedent
5) course of dealing
6) trade custom
NON CARRIER CASE- SELLER IS A MERCHANT
risk on seller until buyer takes possession
NON CARRIER CASE- SELLER IS A NON MERCHANT
risk on seller until goods are tendered to buyer
CARRIER CASE- SHIPMENT K
risk of loss shifts to buyer when goods delivered to carrier
FOB SELLER
CARRIER CASE- DESTINATION K
risk of loss shifts to buyer when goods delivered to DESTINATION
FOB ANYTHING ELSE IS A DESTINATION K
REQUIREMENTS K
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
MODIFICATION: CHANGING MATERIAL TERM TO K
CL:
UCC:
CL: NEW CONSIDERATION IS NEEDED
UCC: NO CONSIDERATION, GOOD FAITH NEEDED
MODIFICATION: CAN BE ORAL OR WRITTEN
UCC: CLAUSE PROHIBITING ORAL MODIFICATIONS ARE
VALID
MUTUAL MODIFICATION
1) BOTH PARTIES AGREE TO MODIFY THE ORG TERMS
2) FAIR N REASONABLE UNDER CIRCUMSTANCES
CONDITION PRECEDENT
EVENT HAPPENS PRIOR TO PERFORMANCE OF K
CONDITION CONCURRENT
EVENTS OCCURS AT TIME OF PERFORMANCE OF K
CONDITION SUBSEQUENT
EVENT OCCURS AFTER THE K
CONDITIONS EXCUSED
1) WAIVER
2) BAD FAITH
3) AVOIDING FORFEITURE
TIME IS OF ESSENCE
TIME IS NOT OF THE ESSENCE UNLESS STATED
IF STATED IT BECOMES A CONDITION TO THE K
NON CONFORMING GOODS
THE BUYER
MAY REJECT
MAY ACCEPT
MAY REJECT IN PART N ACCEPT IN PART
SELLERS RIGHT TO CURE
SELLER CAN CURE IF
1) SELLER HAD REASONABLE GROUNDS TO BELIEVE THE GOODS WOULD BE ACCEPTABLE
2) BY NOTICE +NEW TENDER WITHIN TIME FOR PERFORMANCE
INSTALLMENT K
DELIVERING GOODS IN SEVERAL DIFF SHIPMENTS
NON CONFORMING INSTALLMENT K
DEFECTIVE SHIPMENT CANNOT BE REJECTED IF THE DEFECT CAN BE CURED
IMPRACTICABILITY
UNFORSEEN EVENT MAKES PERFORMANCE TOO DIFFICULT/EXPENSIVE
IMPOSSIBILITY
NO ONE CAN PERFORM
FRUSTRATION OF PURPOSE
THE CORE REASON FOR K IS NO LONGER PRESENT
ANTICIPATORY REPUDIATION
1) BEFORE K PERFORMANCE
2)ONE PARTY UNEQUIVOCALLY REFUSES TO PERFORM
DEMAND ASSURANCES
1) DEMAND WHEN DOUBTFUL ABOUT PERFORMANCE
2) PARTY MUST RESPOND IN A REASONABLE AMT OF TIME
UCC: DEMAND MUST BE IN WRITING
RETRACTION OF REPUDIATION
PARTY CAN RETRACT UNLESS:
- THE OTHER PARTY HAS SUED
-THE OTHER PARTY HAS ACCEPTED THE REPUDIATION
-THE OTHER PARTY HAS RELIED ON THE REPUDIATION
LEGAL REMEDY
MONEY DAMAGES
EXPECTATION DAMAGES
PUT PLAINTIFF IN POSITION IF K HAD BEEN PERFORMED
FORSEEABLE W REASONABLE CERTAINTY
EXPECTATION DAMAGES AMT
(K AMT) - (MONEY RECEIVED/SAVED) + (ANY COSTS)
RELIANCE DAMAGES
PUT PLAINTIFF IN POSITION HE WOULD HAVE BEEN PRIOR TO K
-UNREIMBURSED COSTS
-NO EXPECTATION DAMAGES
RESTITUTION
GETTING BAC K ANY VALUE U ALREADY GAVE
-K PARTIALLY PERFORMED
-MEASURED BY MKT VALUE OF SERVICES
CONSEQUENTIAL DAMAGES
FORSEEABLE COSTS BC OF BREACH
LIQUIDATED DAMAGES
DETERMINED AT TIME OF K
ENFORCED IF REASONABLE
NOT A PENALTY
QUANTUM MERUIT
THE BREACHING PARTY CAN RECOVER
(REASONABLE VALUE OF SERVICES)- (DAMAGES INCURRED)
UCC SELLER DAMAGES; IF BUYER BREACHES, SELLER CAN RECOVER
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
LOST VOLUME SELLER
SELLER CAN SELL AS MANY WIDGETS AS POSSIBLE
LOST PROFITS (LOST VOL SELLER)
EXPECTED PROFIT+ COSTS - PAYMENT FOR RESALE
UCC BUYER DAMAGES
IF SELLER BREACHES, BUYER CAN RECOVER
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)
EQUITABLE REMEDIES
RECOVERABLE WHEN REMEDY AT LAW IS INADEQUATE
INJUNCTION
TO PREVENT IRREPARABLE HARM
EMPLOYMENT K
TRADE SECRETS
PROPRIETARY INFO
RESCISSION
NO MEETING OF MINDS
MISTAKE
MISREP
DURESS
LACK OF CAPACITY
3RD PARTY BENEFICIARY
TWO PPL HAVE A VALID K
THIRD PARTY WILL BENEFIT FROM K
INCIDENTAL BENEFICIARY
3RD PARTY WHO INCIDENTAL BENEFITS FROM THE K
NEVER HAS RIGHTS UNDER K
INTENDED BENEFICIARY
ORIG PARTIES INTEND TO BENEFIT A 3RD PARTY
MAY HAVE RIGHTS UNDER THE K
DO NOT NEED TO BE NAMED
RIGHTS VEST WHEN
1) 3RD PARTY IS INFORMED OF RIGHTS AND ACCEPTS OR
2) 3RD PARTY LEARNS OF RIGHTS AND RELIES
IF RIGHTS HAVE VESTED
THIRD PARTY HAS SAME RIGHTS AND DEFENSES AS ORG PARTIES
ASSIGNMENT AND DELEGATION
TWO PPL HAVE A VALID K
ONE PARTY TRANSFERS OBLIGATION TO SOMEONE ELSE
GENERAL RULE: ASSIGNMENTS AND DELEGATIONS ARE
VALID
ASSIGNMENTS AND DELEGATIONS REQ PRESENT
INTENT TO TRANSFER
NOVATION
A RELEASE OF THE ORIGINAL PARTY FROM THE K
ANTI ASSIGNMENT CLAUSE
1) THE ASSIGNMENT IS STILL VALID BUT
2) THE ORIGINAL PARTY LIABLE FOR MONEY DAMAGES
“VOID” MAGIC WORD THT MAKES AN ASSIGNMENT
INVALID
ANTI DELEGATION CLAUSE
THE DELEGATION IS NOT VALID
ASSIGNMENT EXCEPTIONS
1) NOT VALID IF IT WOULD MATERIALLY ALTER RISK OF PERFORMANCE
2) UNIQUE OR PERSONAL SERVICE
K CANNOT BE TRANSFERRED
TERMS (A/D)
NEW PARTY CANNOT CHANGE K TERMS
NEW PARTY ONLY GETS THE ORIGINAL RIGHTS AND OBLIGATIONS
TRANSFERRING MONEY
MUST GIVE NOTICE B4 OBLIGATED TO PAY
WHEN A WRITTEN K FAILS TO EXPRESS THE ACTUAL AGREEMENT B/W BOTH PARTIES DUE TO A MUTUAL MISTAKE, THE CT MAY
REFORM THE WRITING TO B AN ACC EXPRESSION OF THE AGREEMENT
THE MEANING OF A TERM SUPPLIED BY _____ WILL B OBSERVED W RESP TO A TRANSACTION B/W MEMBERS OF THE TRADE
USAGE OF THE TRADE
A PERSON CANNOT AVOID A K FOR MUTUAL MISTAKE WHERE THT PERSON
BEARS THE RISK OF MISTAKE
AN OFFEROR MAY GENERALLY REVOKE AN OFFER UP UNTIL THE MOMENT OF ACCEPTANCE
HOWEVER
DETRIMENTAL RELIANCE BY THE OFFEREE CAN TRANSFORM AN OFFER INTO
AN OPTION K
(FOR A REASONABLE LENGTH OF TIME)
