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Utah Essay Bar Studies > K and Sales > Flashcards

K and Sales Flashcards

1
Q

Applicable Law

A

UCC or CL

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2
Q

UCC Applicable Law

A

Governs Ks for sale of goods

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3
Q

CL Applicable Law

A

Everything not covered by UCC

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4
Q

Mixed Transactions

A

Predominance Purpose Test

What is the main purpose of the k

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5
Q

K Formation

A

Requires mutual assent
Consisting of offer
Acceptance and consideration

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6
Q

CL Offer

A

Manifestation of willingness to enter into bargain shown by intent
Definite and Certain Terms (QTIPS)
Communication such that offeree has knowledge

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7
Q

UCC Offer

A

Inviting acceptance in any manner and by any medium in light of circumstances

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8
Q

Term of Offer

A 
Rejection
Counteroffer 
Revocation
Lapse of Time
Death/Incapacity
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9
Q

Rejection of Offer

A

Outright rejection of the offer

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10
Q

Counteroffer

A

Same subject matter

But different terms

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11
Q

Revocation

A

Offeror anytime before acceptance
Direct or indirect
Unambiguous words or conduct inconsistent w/ intention to contract
Offeree aware

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12
Q

Exceptions to Revocation

A

UCC Firm Offer
Option K
Detrimental Reliance

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13
Q

UCC Firm Offer

A

Made by a merchant
Signed writing
Assurances to be held open
Limited to 3 months if not stated

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14
Q

Option K Exception to Revocation

A

Option to enter into k for
Specified time and
Promise to hold open
Consideration required

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15
Q

Detrimental Reliance Exception to Revocation

A

Made preparation to perform in part OR

In reasonable detrimental reliance

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16
Q

Lapse of Time Revocation

A

Set time for acceptance
If none, then reasonable time
Oral offers lapses at end of conversation

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17
Q

Death/Capacity Revocation

A

If either dies or loses capacity

Terminates automatically

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18
Q

CL Acceptance

A 
Precise mirror image of offer
Objective standard of acceptance
Unilateral K
Promise for performance
Bilateral K
Promise for promise
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19
Q

Silence as Acceptance

A

Not allowed unless offeree reason to believe offer accepted was silent and intended to OR based on prior dealing

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20
Q

UCC Acceptance 2-207

A

Expression of acceptance or written confirmation acts as acceptance even if additional or different

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21
Q

Battle of Forms both Merchants & Add Terms

A

Additional terms auto added unless:
Offer expressly limits acceptance to terms
Material alteration (warranty disclaimer)
Objection within reasonable time

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22
Q

Battle of Forms either not Merchants & Add Terms

A

Any additional term will
Not be apart of the contract
Unless the other party assents

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23
Q

UCC Different Terms

A

Knock Out Rule (Maj Rule):
Conflicting terms cancel either out K consists of agreed upon terms
UCC
Gap fillers will be used

Min Rule:
Treat different terms as additional terms

Fall Out Rule:
Offeror’s terms control

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24
Q

UCC Shipping Goods

A

Offer accepted by promptly shipping conforming or non-conforming goods
Conforming: then acceptance

Non-conforming shipment w/out acknowledging: means acceptance and breach

Shipment w/ accommodation: then no acceptance but counteroffer

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25
Mailbox Rule
Effective upon proper dispatch | Offeree no longer has control or possession of acceptance
26
Exceptions to Mailbox Rule
Terms of offer control Option k effective upon receipt; not dispatch If acceptance and rejection sent Rejection first, acceptance controls if received first Acceptance first, acceptance controls
27
Consideration
Bargained-for exchange
28
Illusory Promise
Promise something but does not commit to do anything | “I will buy as many widgets as I want”
29
Requirement K
``` Implied obligation of good faith Requirements Seller will be exclusive source of Buyer’s requirements for Particular period of time ```
30
Output K
Buyer will buy all of seller’s output | For particular time period
31
Promissory Estoppel Cons
Foreseeably induces reliance and actually relied upon | Limited to reliance damages
32
Defenses to Formation
``` SoF Misrepresentation Fraud Unconscionability Mistake Capacity ```
33
Categories of SoF
``` Marriage Real Property Outside One Year Sale of Goods over $500 Surety ```
34
Req of SoF
Writing Essential Terms Signed by party to be charged
35
Exceptions of Req of SoF
Between Merchants Written confirmation w/ in reasonable time AND No objection w/ in 10 days of receiving confirmation
36
SoF Marriage Exceptions
Promises that are not consideration
37
SoF Real Property Exceptions
Part performance | Payment, possession or improvements
38
SoF One Year Exceptions
Part performance
39
SoF Goods over $500 Exceptions
Goods accepted or paid for Admission in pleading or court Specially manufactured goods
40
SoF Surety Exceptions
When main purpose is for | Promisor’s own economic interest
41
Exceptions to SoF generally
Promissory estoppel and | Judicial admissions
42
K Misrepresentation
``` One party making misrepresentation Prior to other signing the k Need not be intentional Must be material fact Justifiable and actual reliance ```
43
K Fraud
``` False statement of material fact Knowledge of the statement’s falsity Intent to induce reliance Justifiable and actual reliance Damages suffered ```
44
K Unconscionability
``` Procedural Unfairness in k formation Bargain struck flawed with Lack of meaningful choice Substantive Oppressive and One-sided that Shock conscience of court ```
45
K Mutual Mistake
Basic assumption of the k Material effect on the deal Adverse party did not assume risk of loss
46
K Unilateral Mistake
Mistaken party must show Mutual requirements PLUS Other party knew or should have known
47
K Capacity
Minor, mentally or intoxicated then K invalid unless Minor contracted for necessities
48
K Condition
Event that must occur before performance of other party is due If does not occur, performance of other is excused
49
K Types of Conditions
Express | Constructive
50
K Express Condition
Created by language of parties Demonstrating intent to have a condition Strict compliance
51
K Constructive Condition
Supplied by court for fairness | Substantial performance
52
Waived/Satisfied Condition
The party with the benefit of condition always has the power to waive Benefit: receiving and keeping benefit OR failure to insist on compliance Can be retracted unless other party detrimentally relied
53
PER
Limits extent of introduction of evidence of writings made prior to or contemporaneous with signed written contract
54
Partial Integration
Intended to be final expression of Agreement but not include all details Not allowed to contradict a term Allowed to supplement a term
55
Total Integration
Intended to be final expression and Details of agreement Not allowed to contradict or supplement
56
Exceptions to PER
K formation or enforcement defects Does not bar evidence of defects or defenses Conditions precedent Ambiguous terms
57
PER Ambiguous Terms
Interpretation of ambiguous terms of k
58
UCC PER Ambiguous Terms
Course of Performance: Evid of the conduct of the parties regarding the k Course of Dealing: Evid of conduct of parties regarding past k Usage of Trade: Evid of the meaning others in the same industry attach to the term
59
Modifications
Written or Oral
60
Exceptions to Oral rule of Modification
If the k as modified falls under SoF | Must meet SoF
61
CL Modification
Mutual assent and consideration required | “No oral modifications” clauses not enforced
62
UCC Modification
Mutual assent and good faith required | But not consideration
63
3rd Party Beneficiary of K
Person whom promisor intends to benefit Intended or Incidental
64
Intended Beneficiary of K
One intended by promisor to benefit from k | Can sue to enforce
65
Incidental Beneficiary of K
One who indirectly benefits | Cannot sue to enforce
66
Assignment of K
``` Transfers rights under k to 3rd party Generally all rights assignable No consideration required Gratuitous assignment allowed Assignee stands in shoes of assignor ```
67
Exceptions of Assignment of K
Can’t assign if material change in duty/risk
68
Delegation of K
Appoints duties owed under k Generally most duties can be delegated Delegator remains liable
69
Exceptions of Delegation of K
Can’t delegate duties of special skill
70
Novation of K
Obligee expressly agrees to Accept performance of delegatee Instead of delegator Terminates liability of delegator
71
Anticipatory Repudiation
Unequivocal expression by a party Occurring before time performance due That will not perform under k
72
Options for Non-Repudiating Party of Anticipatory Repudiation
Sue immediately: cannot do this if only part of performance left is payment, Suspend performance and wait until performance is due to sue, Treat k as discharged and repudiation as offer to rescind, OR Urge performance under k and sue later if efforts are futile
73
Right to Demand Adequate Assurances
If not repudiation but cause reasonable grounds for insecurity Can demand adequate assurances in writing May suspend performance until assurance given If fails to respond w/in 30 days, considered repudiation
74
CL Material Breach
Not substantial performance on k | Excuses performance of non-breaching party
75
Factors of CL Material Breach
``` No substantial benefit Extent of any part or full performance Willfulness of breach Time is not of essence Unless specifically agreed to Divisible contract: Can separate breach from other parts of k ```
76
CL Minor Breach
If not material may recover BUT must still perform
77
UCC Perfect Tender
Single delivery requires perfect performance If non-conforming then: Reject whole delivery w/ in reasonable time, Accept OR Accept any commercial unit and reject rest
78
Exception of UCC Perfect Tender Installment K
Substantial conformity AND | Must allow seller to cure
79
UCC Seller's Right to Cure
``` Right to reject non-conforming Subject to seller’s right to cure Before performance due: Must give notice to buyer Make tender within time for performance OR After if believed it would be accepted ```
80
K Warranties
Express Implied Warranty of Merchantability Implied Warranty Fit for Particular Purpose Implied Warranty of Good Faith and Fair Dealing
81
Implied Warranty of Merchantability
Fit for ordinary purpose | Can be disclaimed “as is”
82
Implied Warranty Fit for Particular Purpose
Buyer relies on Seller’s judgment to select Appropriate goods for Stated purpose
83
Implied Warranty of Good Faith and Fair Dealing
Inherent in every k
84
Accord
One party promises to Render substitute performance AND The other promises to accept Consideration required
85
Satisfaction
Performance of the accord Discharges original agreement If breached Can sue under the original or accord
86
Defenses to Enforcement of K
``` Formation Defenses Undue Influence/Duress Capacity Condition not met Illegality Impossibility Impracticability Frustration of Purpose ```
87
Undue Influence/ Duress K Defense
Extreme pressure, coercion or threat that leads to invalidation of a k Susceptibility to pressure due to relationship
88
Capacity K Defense
Minority or mental incapacity
89
Conditions not Met K Defense
Serves as defense to non-performance
90
Impossibility K Defense
Makes performance literally impossible | Neither party assumed risk
91
Impracticability K Defense
Non-occurrence of event makes performance Extremely and unreasonably difficult Must be basic assumption of k No allocation of risk to party using defense Monetary loss usually not enough
92
Frustration of Purpose K Defense
Purpose for entering contract destroyed Both parties know of purpose Not reasonably foreseeable Frustration total
93
Material Benefit Consideration
Exception to past consideration If made after receiving significant benefit Unless conferred benefit as gift

Utah Essay Bar Studies (16 decks)

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