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K Flashcards

1
Q

Essay Outline

A
  1. Governing Law
  2. Formation of a K
  3. SOF
  4. Type of K
  5. Terms of a K
  6. Breach
  7. Defenses
  8. Damages
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2
Q

Offer

A

manifestation of intent to enter into an agreement

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3
Q

Acceptance

A

assenting to the terms of the offer.
- Common law: mirror image rule ( To form a binding K acceptance should generally be relayed in the manner authorized requested or reasonably expected by offeror)

  • UCC: adding or changing a term does not prevent acceptance (meaning included in K) if
    • both merchants, no material change and no objection within a reasonable time

GR: acceptance is effective when mailed (mailbox rule)

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4
Q

Consideration

A

a bargained for legal detriment/benefit

  • it can be a promise for a promise
  • past consideration is not consideration
  • adequacy of consideration irrelevant
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5
Q

Divisible/Installment K

A

A K can be separated into segments for which separate performance obligations exists for each segment

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6
Q

Promissory Estoppel

A
  1. A promise
  2. that promisor reasonably belies would result in other party’s reliance
  3. other party did in fact rely on
  4. that party suffered a detriment due to their detrimental reliance

Promissory Estoppel is an equitable remedy to prevent another party’s unjust enrichment. The remedy is restitution which places the party who relied back into place would have been before reliance

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7
Q

Option K

A

A promise to keep an offer open for a period of time. MUST GIVE CONSIDERATION

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8
Q

Firm Offer

A

UCC term for an option K except its for the sale of goods, between 2 merchants, a signed writing and irrevocable for up to 3 months

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9
Q

K Modification

A

Common Law: new consideration required on both sides
UCC: consideration not required just need good faith. Meaning considered fair

If SOF is applicable any modification must also satisfy the SOF

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10
Q

SOF Writing

A 
MYLEGS (K in consideration of marriage, K which cannot be completed in 1 yr or less, land sale, promises by executor of an estate, sale of goods for $500 or more, suretyship, a promise to answer the debt of another)
Must contain
1. Names of parties
2. signature of parties to be charged
3. transaction subject matter
4. quantity
5. Price

FL adds, healthcare guarantees, debt barred by SOL, newspaper subscriptions, home solicitations sales, home improvement K’s and credit agreements

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11
Q

Parol Evidence

A

Keeps out evidence of prior or contemporaneous agreements that contradicts a later final written agreement

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12
Q

Condition Precedent

A

One that must occur or fail to occur before an absolute duty of immediate performance arise in the other party

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13
Q

Lack of Capacity

A

GR: the law generally deems a minor as lacking the capacity to enter into a valid K
E: to protect the minor the law states that the K can be voidable by the minor. However the minor can elect to enforce the K

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14
Q

Delegation

A

GR: all contractual duties may be delegated to a TP
E: duties involving special skill may not be delegated. This applies even if the delegate has a greater skill than delegator. The obligee is not required to accept performance from the delgagete of nondelegable duties

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15
Q

Mutual Mistake

A

no meeting of the minds. There is a mutual misunderstanding. Entitled to recession

There is a mistake in the basic assumption upon which the K is premised

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16
Q

Unilateral Mistake

A
  1. factual mistake at formation of the K
  2. mistake concerns a material aspect of K
  3. mistaken party relied on mistake
  4. non-mistaken party KNEW OR HAD REASON TO KNOW of others mistake but did nothing
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17
Q

Misrepresentation

A

occurs when first party

  • makes a statement involving a material fact to a 2nd party
  • knowing the statement is false
  • intending the 2nd party rely upon this statement
  • 2nd party relies on false statement
  • 2nd party reliance is justified and
  • damages result from reliance on false statement
18
Q

Anticipatory Repudiation

A

An early statement of termination that a party will not perform their obligation under the K

when a party fails to send adequate assurances( a party with reasonable grounds for being insecure about the other party’s performance may in writing require adequate assurances that the other party will perform in accordance with the K) within 30 days the other party may considered K repudiated

19
Q

material breach

A

a failure to perform a duty the contract was created for such that it changes the economic risks of the parties

20
Q

Impracticability/impossibility

A

a defense to breach by not performing on the basis of an unforeseen change in circumstances such as an event that renders a party’s performance difficult.

Common law: impossibility (never going to happen)
UCC: Impracticability (think more can still happen usually involves more money)

Price increases are usually foreseeable so cannot generally use that as a defense

21
Q

Unconscionability

A

unfair surprise and oppressive terms that render a K unreasonable. Tested at the time the agreement was made

Can include a K that appears to be sufficiently one-sided

22
Q

Specially manufactured goods exception to SOF

A

Need all 3 in FL

  1. goods specially manufactured for buyer
  2. seller started work on goods or entered into a commitment by TP
  3. Goods not sellable in sellers ordinary course of business
23
Q

undue influence

A

inducing someone on their own free will

24
Q

Duress

A

violence or threat of violence

25
Q

Merchant Confimatory Memo

A

one party can use its own signed writing to satisfy the SOF against another if

  • both parties are merchants
  • writing claims agreement and has quantity
  • no written objection within 10 days
  • think like a sales receipt
26
Q

Damages

A

Non Breaching Party

  1. Expectation Damages- put injured party in as good as a position as full performance to compensate for lost expectation
  2. Consequential- foreseeable at time enter into K and mitigate (mitigate losses)
  3. Incidental- nominal expenses associated with breach
  4. mitigation

Breaching Party

  1. Restitution- prevents breaching party from unjust enrichment
  2. consequential
  3. incidental
  4. Promissory estoppel/detrimental reliance

Specific Performance: when money damages are inadequate. Only for unique skill or property

Liquidated: an amount that parties stipulate to in an agreement to pay upon an occurrence of an event such as a breach. Will be enforceable as long as reasonable under the circumstances.

Punitive- governed by FL state usually not applicable in K law

27
Q

Atty Fees

A

American Rule: each side pays for own fees unless a K or statute provides otherwise

FL: does have a statute allowing recovery of expenses and fees to a prevailing party if the other party acted in bad faith about their litigation

28
Q

TP Beneficiary

A

2 ppl enter into a K intending to benefit a TP

  1. Intended: usually named in K, TP has rights under the K

In order to have rights, they must VEST. To vest

  1. aware of rights
  2. materially alter position based on supposed rights or
  3. commence suit
  4. Incidental: no rights under the K

A TP intended beneficiary may enforce promise even when promise does not specifically name/identify a specific beneficiary as long as it identifies a beneficiary class

29
Q

Breach

A

A breach of K occurs when a party fails to perform a contractual duty as required.

30
Q

Restitution

A
  1. P conferred a benefit
  2. Benefit not officious (volunteering ones services) or gratuitous
  3. D could reject but did not

Buzz word “ value of services performed” not entitled to K price

31
Q

Perfect Tender

A

a seller must deliver perfect goods in the right place at the right time. If tender is not 100% perfect buyer has the right to reject the goods

-Option to cure= a seller who fails to make perfect tender may have an option to cure if time has not expired or if time has expired there are reasonable grounds

32
Q

Assignment

A

Unless a K includes an explicit provision prohibiting assignment the K may be assigned and the assignment may be upheld

A promisor is only obligated to render performance to assignee if promisor possess KNOWLEDGE of assignment

generally for an assignee to take on assignor’s liability the liability must be specifically stated.

Most provisions against assignment are unenforceable. Thus even when a provision against assignment exists the promisor still must perform

33
Q

Requirements K

A

A requirements contract is a contract in which one party agrees to supply as much of a good or service as is required by the other party, and in exchange the other party expressly or implicitly promises that it will obtain its goods or services exclusively from the first party.

A party may not demand any quantity that is unreasonably disproportionate to any normal or comparable prior requirements.

34
Q

Breach of K

A

A breach happens when a party does not receive the substantial benefit of the parties bargain

35
Q

Validity of a K

A
  • Common law: need certain material terms such as party names, signature of party to be charged, price and quantity
  • UCC: gap fillers for price
  • UCC requires quantity of terms. The requirements K is valid to quantity terms
36
Q

unilateral K

A

an agreement where offeror promise to pay after the occurrence of a specified act

37
Q

bilateral K

A

both parties have an obligation to perform under the K

38
Q

Advertisements

A

not an offer, a mere invitation to deal

E: when the invitation is specific and there is quantity

39
Q

Rejection of an Offer

A

generally occurs when the offeree receives notice of rejection or termination.

40
Q

Part Performance Exception to SOF

A
  1. need payment
  2. possession
  3. substantial improvements
41
Q

Prompt Shipment

A

Under UCC a seller may accept an offer that seeks prompt shipment of goods by promptly shipping them

  • shipment of non-conforming goods is acceptance and breach
  • shipment of non-conforming goods with a reasonable notice of accommodation constitutes a counter offer. The buyer may reject or accept the counter offer
42
Q

Rescission

A

Restores parties to pretransaction/precontractual position

innocent non-disclosure or misrepresentation of a material term give rise to rescission

if all elements met for unilateral mistake, party may be entitled to rescission

K (1 decks)

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