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Utah Essay Bar Studies > K and Sales > Flashcards

K and Sales Flashcards

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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
Q

Mailbox Rule

A

Effective upon proper dispatch

Offeree no longer has control or possession of acceptance

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26
Q

Exceptions to Mailbox Rule

A

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

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27
Q

Consideration

A

Bargained-for exchange

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28
Q

Illusory Promise

A

Promise something but does not commit to do anything

“I will buy as many widgets as I want”

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29
Q

Requirement K

A 
Implied obligation of good faith
Requirements
Seller will be exclusive source of 
Buyer’s requirements for 
Particular period of time
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30
Q

Output K

A

Buyer will buy all of seller’s output

For particular time period

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31
Q

Promissory Estoppel Cons

A

Foreseeably induces reliance and actually relied upon

Limited to reliance damages

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32
Q

Defenses to Formation

A 
SoF
Misrepresentation
Fraud
Unconscionability
Mistake
Capacity
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33
Q

Categories of SoF

A 
Marriage
Real Property
Outside One Year
Sale of Goods over $500
Surety
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34
Q

Req of SoF

A

Writing
Essential Terms
Signed by party to be charged

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35
Q

Exceptions of Req of SoF

A

Between Merchants
Written confirmation w/ in reasonable time AND
No objection w/ in 10 days of receiving confirmation

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36
Q

SoF Marriage Exceptions

A

Promises that are not consideration

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37
Q

SoF Real Property Exceptions

A

Part performance

Payment, possession or improvements

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38
Q

SoF One Year Exceptions

A

Part performance

39
Q

SoF Goods over $500 Exceptions

A

Goods accepted or paid for
Admission in pleading or court
Specially manufactured goods

40
Q

SoF Surety Exceptions

A

When main purpose is for

Promisor’s own economic interest

41
Q

Exceptions to SoF generally

A

Promissory estoppel and

Judicial admissions

42
Q

K Misrepresentation

A 
One party making misrepresentation 
Prior to other signing the k
Need not be intentional
Must be material fact
Justifiable and actual reliance
43
Q

K Fraud

A 
False statement of material fact
Knowledge of the statement’s falsity
Intent to induce reliance
Justifiable and actual reliance
Damages suffered
44
Q

K Unconscionability

A 
Procedural
Unfairness in k formation
Bargain struck flawed with
Lack of meaningful choice
Substantive
Oppressive and
One-sided that
Shock conscience of court
45
Q

K Mutual Mistake

A

Basic assumption of the k
Material effect on the deal
Adverse party did not assume risk of loss

46
Q

K Unilateral Mistake

A

Mistaken party must show
Mutual requirements PLUS
Other party knew or should have known

47
Q

K Capacity

A

Minor, mentally or intoxicated then
K invalid unless
Minor contracted for necessities

48
Q

K Condition

A

Event that must occur before performance of other party is due
If does not occur, performance of other is excused

49
Q

K Types of Conditions

A

Express

Constructive

50
Q

K Express Condition

A

Created by language of parties
Demonstrating intent to have a condition
Strict compliance

51
Q

K Constructive Condition

A

Supplied by court for fairness

Substantial performance

52
Q

Waived/Satisfied Condition

A

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
Q

PER

A

Limits extent of introduction of evidence of writings made prior to or contemporaneous with signed written contract

54
Q

Partial Integration

A

Intended to be final expression of
Agreement but not include all details
Not allowed to contradict a term
Allowed to supplement a term

55
Q

Total Integration

A

Intended to be final expression and
Details of agreement
Not allowed to contradict or supplement

56
Q

Exceptions to PER

A

K formation or enforcement defects
Does not bar evidence of defects or defenses
Conditions precedent
Ambiguous terms

57
Q

PER Ambiguous Terms

A

Interpretation of ambiguous terms of k

58
Q

UCC PER Ambiguous Terms

A

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
Q

Modifications

A

Written or Oral

60
Q

Exceptions to Oral rule of Modification

A

If the k as modified falls under SoF

Must meet SoF

61
Q

CL Modification

A

Mutual assent and consideration required

“No oral modifications” clauses not enforced

62
Q

UCC Modification

A

Mutual assent and good faith required

But not consideration

63
Q

3rd Party Beneficiary of K

A

Person whom promisor intends to benefit

Intended or Incidental

64
Q

Intended Beneficiary of K

A

One intended by promisor to benefit from k

Can sue to enforce

65
Q

Incidental Beneficiary of K

A

One who indirectly benefits

Cannot sue to enforce

66
Q

Assignment of K

A 
Transfers rights under k to 3rd party
Generally all rights assignable
No consideration required
Gratuitous assignment allowed
Assignee stands in shoes of assignor
67
Q

Exceptions of Assignment of K

A

Can’t assign if material change in duty/risk

68
Q

Delegation of K

A

Appoints duties owed under k
Generally most duties can be delegated
Delegator remains liable

69
Q

Exceptions of Delegation of K

A

Can’t delegate duties of special skill

70
Q

Novation of K

A

Obligee expressly agrees to
Accept performance of delegatee
Instead of delegator
Terminates liability of delegator

71
Q

Anticipatory Repudiation

A

Unequivocal expression by a party
Occurring before time performance due
That will not perform under k

72
Q

Options for Non-Repudiating Party of Anticipatory Repudiation

A

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
Q

Right to Demand Adequate Assurances

A

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
Q

CL Material Breach

A

Not substantial performance on k

Excuses performance of non-breaching party

75
Q

Factors of CL Material Breach

A 
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
Q

CL Minor Breach

A

If not material may recover BUT must still perform

77
Q

UCC Perfect Tender

A

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
Q

Exception of UCC Perfect Tender Installment K

A

Substantial conformity AND

Must allow seller to cure

79
Q

UCC Seller’s Right to Cure

A 
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
Q

K Warranties

A

Express
Implied Warranty of Merchantability
Implied Warranty Fit for Particular Purpose
Implied Warranty of Good Faith and Fair Dealing

81
Q

Implied Warranty of Merchantability

A

Fit for ordinary purpose

Can be disclaimed “as is”

82
Q

Implied Warranty Fit for Particular Purpose

A

Buyer relies on
Seller’s judgment to select
Appropriate goods for
Stated purpose

83
Q

Implied Warranty of Good Faith and Fair Dealing

A

Inherent in every k

84
Q

Accord

A

One party promises to
Render substitute performance AND
The other promises to accept
Consideration required

85
Q

Satisfaction

A

Performance of the accord
Discharges original agreement
If breached
Can sue under the original or accord

86
Q

Defenses to Enforcement of K

A 
Formation Defenses
Undue Influence/Duress
Capacity
Condition not met
Illegality
Impossibility
Impracticability
Frustration of Purpose
87
Q

Undue Influence/ Duress K Defense

A

Extreme pressure, coercion or threat that leads to invalidation of a k
Susceptibility to pressure due to relationship

88
Q

Capacity K Defense

A

Minority or mental incapacity

89
Q

Conditions not Met K Defense

A

Serves as defense to non-performance

90
Q

Impossibility K Defense

A

Makes performance literally impossible

Neither party assumed risk

91
Q

Impracticability K Defense

A

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
Q

Frustration of Purpose K Defense

A

Purpose for entering contract destroyed
Both parties know of purpose
Not reasonably foreseeable
Frustration total

93
Q

Material Benefit Consideration

A

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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