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Kaplan Foundation Slides > Kaplan Contract Foundation Slides > Flashcards

Kaplan Contract Foundation Slides Flashcards

1
Q

Contract Formation Coverage Areas

A
  • Offer
  • Acceptance
  • Consideration
  • Consideration Substitutes
  • Counter Offer
  • Revocation
  • Modification
    • UCC
    • Common Law
  • Preexisting Duty Rule
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2
Q

Checkpoint Items

A
  • Contracts involving the Sale of Land
  • Contracts containing contingencies
    • I will buy if I can get certain financing
    • I will sell my house first
  • Consideration and substitutes for consideration
  • Modification
  • Contracts mixing goods and services
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3
Q

Approach to Contracts

A
  • What Law Applies - UCC or Common Law
  • What Kind of Contract - Unilateral or Bilateral
  • Who are the parties?
    • Merchants/Kids-necessities
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4
Q

What is an Offer

A

An objective manifestation by the offeror of a willingness to enter into a bargain creating the power of acceptance in the offeree

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5
Q

What is an Acceptance

A

An objective manifestation by the offeree to be bound by the terms of the offer

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6
Q

Termination of an Offer (ways to terminate an offer)

A
  • Death of the offeror
  • Revocation
    • Verbal
    • Written
    • Actions inconsistent with the offer
    • Can be communicated by a third party
  • Rejection
  • Counteroffer
  • Lapse of Time
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7
Q

Rejection versus Inquiry

A

Rejection terminates the offeree’s power of acceptance. Inquiry does not terminate the offeree’s power of acceptance. Offeror can renew offer in the face of a rejection

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8
Q

When an offer is made the Offeror can

A

Revoke

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9
Q

When an offer is made the Offeree can either

A
  • Accept
  • Reject
  • Counteroffer (Which is a rejection with an offer)
  • Inquiry
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10
Q

UCC 2-206: Non Conforming Goods

A

If non-conforming goods are shipped, the shipment serves as an acceptance and at the same time a breach

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11
Q

Unilateral Contract

A

Offeror makes an offer that calls for performance; the Offeror is ONLY looking for performance

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12
Q

Bilateral Contract

A

Offeror and offeree exchange mutual promises; the Offeror is ONLY looking for a promise to perform

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13
Q

UCC 2-205: Firm Offer Rule

A

A signed writing by a merchant which by its terms gives assurances that it will be held open is not revocable for lack of consideration for the stated period of time not to exceed three months

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14
Q

Consideration

A

Bargained for Legal Detriment

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15
Q

Consideration – Considerations

A
  • Look for a valid contract
    • Is there a bargain the court MUST enforce?
    • Bargained for exchange
    • Forbearance to sue
  • Look for a substitute for consideration
    • Is there a bargain the court should enforce?
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16
Q

Implied in Law Contracts

A
  • A quasi-contract is NOT an actual contract, rather a legal substitute for a contract formed to impose equity between two parties
  • A contract SHOULD have been formed, even though in actuality it was not
  • Implied in law contracts are used when a court faces a situation of injustice to enforce the agreement to ensure fairness
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17
Q

Modification

A

A subsequent agreement that alters or changes the parties’ duties and obligations under the terms of their original contract

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18
Q

Modification - UCC requires

A

1- Good Faith

2- NO additional Consideration is required

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19
Q

Modification - Common Law

A

Preexisting Duty Rule

- New Consideration Required

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20
Q

Preexisting Duty Rule

A

Performance of an act by which a party is already contractually bound to perform does not constitute valid consideration for a new promise

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21
Q

Defenses and Remedies - Coverage Area

A

Defenses to Contract Formation

  • Infancy
  • Mistake
  • Statute of Frauds
  • Illegality

Remedies

  • Specific Performance
  • Money Damages
  • Injunctions

Parol Evidence

22
Q

Checkpoint items

A
  • Lots of defenses to formation
  • Remedies are a hot area
  • Lot of cross over here with state essays
  • Also cross over here with landlord tenant
  • Statute of Frauds is always a favorite
23
Q

Contract Defenses - Mutual Mistake

A

Both parties are mistaken as to a material element that goes to the heart or essence of the bargain.

The Remedy: Rescission of the Contract

24
Q

Contract Defenses - Unilateral Mistake

A

Contract is enforceable against the mistaken party, UNLESS the non-mistaken party knew or should have known of the other’s mistake

25
Q

Anti-Assignment Clause

A
  • The assignor need not consult the other party to the contract
  • An assignment cannot have any effect on the duties of the other party to the contract, nor can it reduce the possibility of the other party receiving full performance of the same quality
  • Certain kinds of performance, therefore, cannot be assigned because they create a unique relationship between the parties to the contract
26
Q

Implied in Law

A

A legal substitute for a contract formed to impose equity between two parties. A contract should have been formed, even though in actuality it was not

27
Q

Implied in Fact

A

An agreement founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred from the conduct of the parties

28
Q

Contract Remedies in Law

A

Money Damages

29
Q

Contract Remedies in Equity

A
  • Injunction
  • Specific Performance
  • Rescission
  • Reformation
  • Quiet Title actions
  • Partition Proceedings
30
Q

Specific Performance

A

A remedy used to enforce a contract for the sale of unique item of personal property or real property

31
Q

Condition Precedent

A

An act or an event (other than the lapse of time) that must occur first before a party is under a duty to perform

32
Q

Contracts with Minors

A
  • Minors are regarded as not having sufficient capacity to comprehend questions involving contractual rights
  • A person dealing with a minor does so at his or her peril and subject to the right of the minor to avoid the contract
33
Q

Certain Contracts with Minors cannot be voided

A
  • Taxes
  • Penalties
  • Bank Regulations
  • Military
  • Necessities
34
Q

Statute of Frauds

A

Requires certain types of contracts and agreements to be in writing

35
Q

What is the Mnemonic for the State of Frauds

A

MY LEGS

M- Marriage
Y- Year (1) - Contracts that cannot be performed in 
L- Land
E- Executor 
G- Guarantor 
S- Sale of Goods (500+)
36
Q

Main Purpose Rule

A

An oral promise to answer for the debt of another is enforceable if the promisor’s main purpose is to further his own economic advantage

37
Q

Parol Evidence Rule

A

Once the parties have reduced their agreement to a writing, evidence of any prior oral or written or contemporaneous oral agreements is inadmissible to alter, vary, or contradict the terms of the writing

38
Q

Parol Evidence Exceptions

A
  • Fraud
  • Mistake
  • Illegality
  • Duress
  • Partial Integration
  • Conditions Precedent
39
Q

UCC - Uniform Commercial Code -Coverage Areas

A

UCC

  • Merchant Specific Rules
    • Confirmatory Memo
    • Firm Offer Rule
  • Defenses
  • Damages
  • Requirements Contracts
  • Installment Contracts
  • Battle of the Forms

Third Party Beneficiaries

  • Intended
  • Incidental
  • Assignment and Delegation
40
Q

Checkpoint Items

A
  • Rule specific questions - know it or dont
  • Many questions deal with who the parties are
  • Students get lost in the details
  • Often times identifying who is making the offer and who is accepting is difficult
  • Whose terms govern?
41
Q

Requirements Contract

A

A contract in which one party agrees to supply as much as 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 and services exclusively from the first party

42
Q

UCC 2-712: Cover by Buyer

A

After covering aggrieved buyer may recover:

Price to Cover - Contract Price
+ Incidental and Consequential Damages

43
Q

UCC 2-615: Impracticability

A

Delay in delivery or non delivery by a seller is not a breach if the seller’s performance is made impracticable by a contingency whose non-occurrence was a basic assumption on which the contract was made

44
Q

Impossibility - Subjective

A

Subjective impossibility will NOT excuse duties of performance under a contract

45
Q

Impossibility - Objective

A

Objective impossibility WILL excuse duties of performance under a contract

46
Q

3rd Party Beneficiary Analysis

A
  • Identify 3rd Party Beneficiary Contract
  • Intent to Benefit Test
    • Is 3rd Party incidental - then no rights
    • Is 3rd party intended - then Step 3
  • Has Third Party Vested? (Have Rights?)
    • Learned of the contract and assented to it?
    • Changed positions in reliance on the contract?
47
Q

UCC 2-601: Buyer’s Options for Non-Conforming Goods

A

Buyer has three options:
1. He can accept the whole shipment
2- He can reject the whole shipment
3- He can accept any commercial unit or units and reject the rest

48
Q

Free on Board (FOB)

A

Indicates that the seller is responsible for getting the goods to a shipper designated by the buyer. At this point, the risk of loss passes from the seller to the buyer

49
Q

Incidental Damages

A

Incidental Damages are: Expenses incurred by the injured party as a result of the other party’s breach of a contract, such as:

  • Expenses for inspection, receipt, transportation
  • Storage of rejected goods or services
  • Expenses associated with buying replacement goods or services, and
  • Any other expense related to delay in delivery or non-delivery
50
Q

Consequential Damages

A
  • Damages which do not derive directly from the breach, but from the result of the breach; they are more “indirect” in direct
  • Ex- losses Buyer incurs which the Supplier had reason to know at the time of contracting and which Buyer could not reasonably have prevented
51
Q

UCC 2-609: Right to Adequate Assurances

A
  • When reasonable grounds for insecurity arise, one party may (in writing) demand adequate assurances from the other that the performance will occur
  • Assurances must be provided within a reasonable time (no more than 30 days)
  • Failure to provide assurances is a repudiation of the contract

Kaplan Foundation Slides (7 decks)

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