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MBE Contracts Flashcards

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1
Q

Misrepresentation

A

An untrue assertion of fact

K can be voided/rescinded if a party has been defrauded through a fraudulent misrepresentation bc it means there was no meeting of the minds

Misrepresentation can lead to mistake of basic assumptions so these may go together

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2
Q

Examples of Misrepresentation

A

Non-disclosures
False assertions

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3
Q

Are contracts with minors voidable?

A

Yes, but only by the minor

If you decided to K with a minor, you can’t later say you want to void just bc they’re a minor

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4
Q

“Perfect Tender Rule” in Ks for the sale of goods

A

Both the goods themselves and their delivery must perfectly conform to the requirements of the contract

Otherwise there is breach and party isn’t required to accept the goods

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5
Q

A contract is best characterized as a(n)

A

Legally enforceable agreement

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6
Q

Predominant Purpose rule

A

Used to determine if K is governed by the UCC or the common law.

Asks whether K is predominantly about a good or a service.

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7
Q

Offer

A

An objective manifestation of a willingness to enter into an agreement (by the offeror) that creates a power of acceptance in the offeree

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8
Q

Essential term under the UCC?

A

Quantity

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9
Q

An advertisement is generally…

A

an invitation to deal

But may be treated otherwise if its a reward advertisement/or specific

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10
Q

What test governs offer and acceptance?

A

The objective test.

Must show an objective intent to be bound

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11
Q

4 Types of Irrevocable Offers

A

(1) Unilateral Ks (partial perf)
(2) Firm offers (merchant)
(3) Option Ks
(4) Detrimental reliance

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12
Q

6 ways to revoke an offer

A

(1) expressly communicating/direct revocation
(2) offeree learns of constructive revocation/indirect revocation
(3) rejection
(4) counter-offer (bc rejection)
(5) offeror dies
(6) Lapse/reasonable time passes

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13
Q

Can a terminated offer be revived by the offeror?

A

Yes, even if an offer is squashed, the offeror can always throw out a new offer with the exact same terms as before (“revival”).

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14
Q

Firm Offer Requirements

A

A firm offer must be
(1) written and signed by the offeror (merchant); and
(2) contain an explicit promise not to revoke

Lasts either: (i) as long as stated in the offer, or (ii) for a reasonable time period not to exceed 90 days unless there’s consideration

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15
Q

Bilateral vs. Unilateral

A

Bilateral = promise for a promise

Unilateral = promise for performance

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16
Q

Is an offeree required to finish performing in a unilateral K?

A

No, bc you can’t make someone accept your offer.

So, offeror can’t require offeree to complete performance

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17
Q

How do you accept an ambiguous offer that can be either unilateral or bilateral?

A

Acceptance can be by either performance or a return promise

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18
Q

Acceptance

A

Objective manifestation of an intent to be bound, by the offeree

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19
Q

If a seller of goods ships the wrong goods, have they accepted?

A

Yes, but they’re also in breach

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20
Q

name what the mailbox rule wont apply to

A

rejections
counteroffers
option Ks

It only applies to acceptances sent on dispatch.

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21
Q

Mailbox Rule Exception

A

If—Rejection then acceptance…..whatever letter arrives first prevails

*acceptance effective on dispatch
* everything else is effective upon receipt

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22
Q

§ 2-207(1)

A

Acceptance or counteroffer/no k?

  • A definite/seasonable acceptance sent within a reasonable time is valid with additional/different terms UNLESS:
  • The (offeree’s) acceptance is expressly conditioned on the offeror’s assent to their new addt’l term(s) (counteroffer)
  • “Deal but not unless/if and only if/on the condition”

If acceptance,
then move on to § 2-207(2)

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23
Q

§ 2-207(2)

A

Which terms of the § 2-207(1) acceptance will control: new addt’l terms OR the gap fillers

For K between merchants New addt’l terms will control UNLESS:
(1) new term materially alters the K
(2) the offeror limits acceptance to the terms of its offer
(3) the offeror objects to the additional terms within a reasonable time

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24
Q

Knock-Out Rule
§ 2-207(2)

A

“Knocks out” both of the parties’ different terms and applies gap fillers

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25
Q

§ 2-207(3)

A

Acceptance based on conduct despite no K formation which creates a new K

Here, only overlapping terms become part of the K and the rest is supplied by gap fillers

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26
Q

§ 2-207—Confirming Memo

A

early agreement + later there’s a written confirmation with new terms

  • Work through the same steps as § 2-207(2).
  • But the new terms will very rarely come in.
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27
Q

Under the common law, what does a conditional acceptance functions as?

A

A counter-offer

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28
Q

Illusory promise

A

Where one side is not really committing to the deal under the objective test; so there’s no consideration.

  • “I’d like to buy your car when I have more money.”
  • “When the economy gets better/or when I feel like it, I will pay $5K for your car.”
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29
Q

Are satisfaction contracts illusory?

A

No, they’re real contracts with consideration.

“I promise to pay you $500 if you paint a portrait of my family that meets my satisfaction.”

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30
Q

Is promising not to sue sufficient consideration?

A

Yes, only if
- the P has a good faith-belief in the validity of the claim OR
- there’s reason to doubt the validity of the claim due to uncertain law

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31
Q

Pre-existing Duty Rule

A

A promise to do something you’re already legally obligated to do is not consideration

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32
Q

Exceptions to the Pre-existing Duty Rule

A

(1) A change in performance
(2) A third party promising to pay
(3) Unforeseen difficulties that would excuse performance

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33
Q

UCC Contract Modifications

A

Under UCC, no consideration is needed for modifications, only good faith

*unless modification subject to SOF like sale of goods $500+

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34
Q

Is not doing something you’re legally entitled to do, a legal detriment for consideration?

A

Yes

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35
Q

Are output and requirements contracts illusory?

A

No,

There’s a way for a party to breach:
- by requiring the product and purchasing from others; or
- by making the product and selling to others.

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36
Q

Output K vs. Requirement K

A

Output = Seller promises to sell buyer all they make

Requirement = Buyer promises to buy all they require

*They satisfy quantity under UCC

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37
Q

Promissory Estoppel

A

No K, just statement inducing to detrimentally rely; making promise become enforceable

Elements:
(1) a promise that would be reasonably expected to induce reliance

(2) detrimental reliance on the promise

(3) injustice can only be avoided by enforcing the promise

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38
Q

Quasi-Contract
(contract implied-in-law)

A

When you would’ve made a K if you could but you couldn’t OR when one
party conferred a benefit on another party and it’s only fair to pay that back
Goal: k made by law to prevent unjust enrichment

Elements:
(1) P confers a measurable benefit on D;
(2) Benefit is conferred with the expectation of payment; and
(3) It’d be unfair to let D keep the benefit without
paying.

Examples:
- Prof faints. Student calls 911. Later asks Prof to pay back. Student can recover.
- X paints your house then force demands pay. They wont recover.

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39
Q

Types of consideration substitutes

A
  • Promissory Estoppel
  • Quasi-contract
  • Moral Obligation Plus Subsequent Promise

(only here can a promise with no consideration be enforced)

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40
Q

Breach

A

Once a duty to perform exists, nonperformance is a breach of contract unless the duty is discharged

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41
Q

What are the measure of damages to an injured buyer in a K for sale of real estate?

A

the difference between the K price and the fair market value of the property at the time of the breach + any incidental/consequential damages

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42
Q

Intended Third Party Beneficiary

A

3rd party that the original parties intended to benefit.
* They were discussed/mentioned in the K
* They may have rights to sue original party if rights have vested

Their right vests when:
- They’re notified of the benefit; or
- They learn about it and begin to rely on it
(at which point promisor/promisee stop retaining power to modify/discharge the duty owed to the intended beneficiary)

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43
Q

When do the rights of an Intended Third Party Beneficiary vest?

A

(1) They manifest assent to the K (become aware)

(2) They detrimentally rely on it
(at which point promisor/promisee stop retaining power to modify/discharge the duty owed to the intended beneficiary)

(3) they filed a lawsuit to enforce the K

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44
Q

Incidental Third Party Beneficiary

A

Someone who is benefiting from the K but has no rights to enforce the it bc that wasn’t the primary purpose of the K

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45
Q

May a court reform the writing of a K if it failed to express the actual agreement between both parties due to a mutual mistake?

A

Yes, it may reform the writing to be an accurate expression of the agreement

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46
Q

Is party A obligated to perform when party B partially breaches?

A

Yes, when a party has committed only a partial breach, the other party is still obligated to perform.

If they don’t the partially-breaching party has the right to specific performance or damages for total breach

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47
Q

Common Law Modification

A
  • Requires assent + consideration
  • could be oral or written
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48
Q

What are the damages for breach of warranty under the UCC?

A

The position they party would’ve been in, but-for the breach

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49
Q

Can a party recover consequential damages if those damages could’ve been avoided?

A

No, a victim of breach is entitled to recover only those damages that couldn’t have been reasonably avoided

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50
Q

When may a party’s silence be actionable as nondisclosure?

A
  • When the party engages in active concealment or
  • When the party owes a fiduciary duty to the other party.
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51
Q

Duress

A

An improper threat that deprives a party from making a meaningful choice to contract

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52
Q

Unconscionability
- Procedural
- Substantive

A

Procedural unconscionability is a defect in the bargaining process

Substantive unconscionability is an exploitive contractual term.

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53
Q

Topics to consider whether there is an enforceable K
(All Contracts Don’t Stink)

A

All Contracts Don’t Stink

Acceptance
Consideration
Defenses
Statute of Frauds

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54
Q

2 main ways to satisfy the SOF?

A
  • Having a signed writing by D
  • By some performance on the deal (unless service K, then needs full by 1 party)
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55
Q

Does a K made in consideration of marriage like a prenup fall under SOF?

A

Yes

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56
Q

SOF: Surety
Main Purpose Exception

A

Not in SOF world if the main purpose in agreeing to pay the debt of another is for that surety’s own economic advantage

(bc if it was for you all along then no risk of fraud to being w)

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57
Q

SOF:
Ks cant be performed under 1 year

A
  • impossible to perform under 1 year
  • K that can’t be performed within 1 year from its making
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58
Q

Luke Skywalker hires you to teach him contract law for the rest of his life. Are we in Statute of Frauds world?

A

No bc it is at least possible that he’d die within the year.

SOF 1 year: applies ONLY to Ks impossible to performed under 1 yr

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59
Q

What does a writing need to satisfy SOF?

A

(1) names and signatures of the parties
(2) essential elements of deal

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60
Q

what types of performance would satisfy SOF in a real estate K?

A

Having 2/3:
- possession
- partial payment
-improvements to the land

(*In FL you need 3/3)

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61
Q

SOF
Signed Writing for UCC

A
  • doesnt need to mention price, just quantity
  • will only be enforceable for the quantity on shown in the K
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62
Q

Does part performance satisfy the SOF for UCC?

A

Yes, part performance satisfies the SOF for UCC, but only for the quantity delivered and accepted

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63
Q

Can a maker of custom-made goods satisfy the SOF by making a substantial beginning toward the manufacturing of the goods?

A

Yes

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64
Q

Can a judicial admission that a K was actually made satisfy SOF under the UCC?

A

Yes
Includes a statement in a pleading or during testimony, etc

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65
Q

If both parties are merchants, how many days of failing to object to a confirming memo would satisfy SOF under UCC?

A

10 days

(but both need to be merchants!!! as part of job they read emails so if they don’t respond they must’ve seen it and been ok)

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66
Q

SOF
Equal Dignity Rule

A

You need a signed writing to authorize an agent to form a K that’d fall in SOF world

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67
Q

When do modifications need to separately satisfy SOF?

A

If modification in SOF world then you need to satisfy SOF reqs for the modification
(ex: sold car for $500 then modified to add tires for $501; need to satisfy.)

If not you dont, even if OG did need to satisfy SOF
(ex: sold car for $500 then modified to add tints for $15; dont need to satisfy)

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68
Q

Regarding services contracts, what is the minimum that must be done for the K to satisfy SOF?

A

Full performance of the contract by 1 party

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69
Q

3 Warranties Under the UCC

A

(1) Express Warranty

(2) Implied Warranty of Merchantability

(3) Implied Warranty of Fitness for a Particular Purpose

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70
Q

Warranty

A

A promise about a term of that explicitly shifts risk to the party making the promise (seller)

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71
Q

Express Warranty

A

A promise that affirms/describes the goods + is part of the basis of the bargain

Includes: samples/models
Doesn’t include: seller’s opinion

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72
Q

Can a merchant who is selling something they don’t usually sell/one-off sale have an Implied Warranty of Merchantability?

A

No

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73
Q

Implied Warranty of Merchantability

A
  • when the seller is a merchant who deals with the goods at issue
  • warrants that the goods are fit for their ordinary commercial purpose
  • implied if not disclaimed
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74
Q

What is the effect of selling something “As is”

A

it disclaims all warranties

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75
Q

Can you disclaim Implied Warranty of Merchantability?

A

Yes
- If it’s in writing— must be conspicuous!!!
- If oral—must use the term “merchantability”

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76
Q

Implied Warranty of Fitness for a Particular Purpose

A

Implied when (1) the buyer intends to use the goods for a particular purpose, and (2) they rely on the seller’s expertise to select the goods

  • Seller doesn’t have to be a merchant
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77
Q

How can the “Implied Warranty of Fitness for a Particular Purpose” be disclaimed?

A

Must be:
- in writing
- conspicuous!!!

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78
Q

How can a condition in K be waived?

A
  • words
  • conduct
  • hindering its occurrence
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79
Q

How can a buyer disclaim/waive any defects that’d usually be warranted under the Implied Warranty of Merchantability?

A

The Implied Warranty of Merchantability is disclaimed/waived for defects that an examination would have revealed if the buyer either:

> examined the goods as fully as desired before entering the contract
or
refused to examine the goods before entering the contract

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80
Q

Must express conditions must be strictly satisfied?

A

Yes

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81
Q

Is substantial performance or material breach relevant when discussing performance for the sale of goods?

A

No, bc of the perfect tender rule

*Unless it’s an installment K

82
Q

2 obligations of the Perfect Tender rule

A

perfect goods
perfect delivery

83
Q

Installment K under UCC

A

K where the goods are to be
- delivered in multiple shipments
- each accepted separately
- payment due upon each delivery

84
Q

Under UCC, when can a buyer revoke their acceptance?

A

When the goods seem OK at delivery but a defect is discovered within a reasonable time

85
Q

When can a seller cure after tendering non-conforming goods?

A
  • when there’s time left on the K
    OR
  • when seller had reasonable grounds to believe buyer would accept the NCG
    (and if so, then new tender must be w/in reasonable time)
  • seller must give notice of intent to cure
86
Q

What can buyer do if seller delivers NCG on delivery day of the K?

A

accept
reject
accept/reject in part

87
Q

NCG in an installment K

A

1 non-conforming installment isn’t a total breach of the K; damages will be owed but it can be cured

UNLESS that 1 non-confirming installment:
(1) substantially impairs the value of the shipment; and
(2) can’t be cured

88
Q

Can a K be cancelled after rejection of a non-conforming tender?

A

K can only be cancelled if the non-conformity substantially impairs the value of the entire K

89
Q

Shipment K delivery

A

F.O.B Seller’s place of business
Seller must:
(1) get the goods to a common carrier
(2) make arrangements for delivery
(3) notify buyer

*Risk of loss after delivery to common carrier on buyer bc as soon as the shipment of goods leaves the seller’s warehouse, the seller records the sale as complete

90
Q

Destination K delivery

A

F.O.B. Buyer’s place of business
Seller must:
(1) get the goods to the buyer’s business
(2) notify the buyer

*If Risk of loss during shipment then its on seller bc they had to get it to buyer’s place

91
Q

Who has Risk of Loss

A

Order of who’d have Risk:
(1) check what K says

(2) party that breached

(3) If the goods are being shipped:
*shipment K = buyer
*destination K = seller

(4) If merchant seller: ROL with seller until buyer receives goods
If not merchant seller: ROL with buyer when seller tenders the goods

92
Q

Reqs for recovering consequential damages

A
  • they were contemplated by the parties at the time the K was made
    or
  • they were foreseeable
93
Q

Restitution

A

restores P any benefit they conferred on D

94
Q

Third party exception to Pre-existing duty rule

A

A pre-existing duty isn’t consideration except when that duty was owed to a third party meaning the initial promise is sufficient consideration for both Ks

(so, the promisor can double dip by conferring 2 benefits from 1 consideration)

95
Q

What is the exception for integrated Ks under the Parol Evidence Rule?

A

Evidence can be admitted to cleat up an ambiguity in the K

96
Q

Debtor exception to Pre-Existing Duty rule

A

debtor only has a pre-existing duty to pay an amount that is indisputably due but if its not and they don’t have to pay anymore, promising TO pay is consideration

97
Q

Implied-in-fact K

A

K formed based on conduct

98
Q

What do you need to form an enforceable contract?

A

Offer
Acceptance
Consideration

99
Q

Offer

A

A manifestation of a willingness to enter into an agreement (by the offeror) that creates a power of acceptance in the offeree

100
Q

Acceptance

A

Objective manifestation of intent to be bound

101
Q

Are Ads offers?

A

no, they’re invitations to deal

102
Q

Option K under UCC

A

(1) offeror is a merchant
(2) assurance offer will remain open
(3) assurance is in writing and signed by the offeror

103
Q

Consideration

A
  • A bargained for exchange
  • or Detrimental reliance
104
Q

Does death after K formation excuse liability?

A

No, unless there was something special about the person performing on the K

105
Q

novation

A

When BOTH parties agree that a 3rd party will take over the K
obligations; like a release

106
Q

With regard to an accord and satisfaction, if the accord is not performed, on what basis may the other party sue?

A

Either the promised performance in the original agreement
or the new promise

107
Q

Anticipatory Repudiation

A

When a party clearly and unequivocally refuses to perform before the K date

108
Q

What can you do if a party anticipatorily repudiates?

A

(1) treat as breach and sue immediately for damages

(2) ignore repudiation, demand performance, wait until K day to see if they perform

(unless all you’re waiting for is payment, then you have to wait till K anyway)

109
Q

If you haven’t heard form the party and are scared they’re going to repudiate can you demand assurances?

A

No, you’re not allowed to demand assurances bc they didn’t do anything to put you in doubt in the first place

110
Q

when can you demand adequate assurances under UCC?

A

when the other party has done/said something to give you reasonable grounds for insecurity about their ability to perform
(even if they haven’t necessarily refused to)

*Under the UCC, the demand for assurances MUST BE IN WRITING

If the party fails to respond within a reasonable time (max 30 days) you can treat this as repudiation/breach

111
Q

Can a party retract its repudiation?

A

Yes, as long as the other side has not
- commenced a lawsuit
- acted in reliance

112
Q

expectation damages

A

Puts a party in the same economic position it would be in if the K had been performed

113
Q

Are unforeseeable consequential damages recoverable?

A

No, unless the breaching party had some reason to know about the possibility
of these special damages at the time of contracting

114
Q

When is equitable relief (like specific performance & injunction) granted in K law?

A

only when monetary damages are inadequate

  • mostly in real estate Ks
  • rarely ever in personal service Ks
115
Q

Under the UCC, when is specific performance available?

A

Only for unique goods like art or custom-made items

116
Q

Right of reclamation

A

when an unpaid seller tries to reclaim goods that were sold on credit when the buyer is insolvent (broke)

117
Q

Reliance damages

A

designed to put a party in the position it would have been in if the K had never existed

118
Q

When can you delegate/assign?

A
  • Always
  • Parties can prohibit and still do it (but parties will owe/recover damages for breach)

REALLY CANT:
- If K invalidates by saying:
“no delegation”
or
“any assignment must be VOID”
(third party CANT recover)

119
Q

Will a delegatee always be liable for breach?

A

No, only if they have received consideration.

A third party cant recover for a bad job from the delegatee if the delegatee was only delegated the duty and not assigned benefits/consideration

(you only told them to do something, they weren’t getting anything out of it so cant punish them w breach)

120
Q

True or False:

Generally, if multiple assignments of the same rights are made without consideration, the last assignee enjoys the assigned rights.

A

True

121
Q

When will a K be deemed impracticable?

A

(1) an unforeseeable event happened
(2) non-occurrence of the event was a basic assumption of the K; and
(3) the party seeking discharge isn’t at fault

122
Q

what Ks are governed by common law

A

Ks for services & real estate

123
Q

What is the main difference between contract modification under the common law and the UCC?

A

Common law:
- consideration

UCC:
- good faith

124
Q

who lacks capacity to make a K

A
  • minors
  • mentally ill
  • people intoxicated
  • people with a guardian by adjudication
125
Q

define accord and satisfaction

A

Under an accord agreement, a party agrees to accept a performance that differs from the one agreed to the in the K, in satisfaction/lieu of the other party’s existing duty.

A “satisfaction” is the performance of the accord agreement; it discharges both the original contract and the accord contract.

126
Q

What makes an irrevocable firm offer under the UCC?

A

(1) offeror is a merchant
(2) an assurance that the offer will remain open
(3) its in a signed writing by the offeror

127
Q

material benefit rule

A

modern trend permitting a performing party to enforce payment by another even though it wasn’t bargained for/requested

128
Q

Define fraud in the inducement, and state its effect on a contract.

A

fraudulent misrepresentation used to induce another to enter into a K

Effect: Contract is VOIDABLE by the adversely affected party

129
Q

Define fraud in the factum (or fraud in the execution), and state its effect on a contract

A

fraudulent misrepresentation preventing a party from knowing the character or essential terms of the transaction.

Effect: No K formed + the apparent contract is VOID.

130
Q

What is an implied-in-fact contract?

A

K that forms when a person’s assent to an offer is inferred only from their conduct

the person must intend the conduct + know it may cause the offeror to believe their offer was accepted

131
Q

3 manners through which clearing up an ambiguity in an integrated K

A
  • Course of performance
  • Course of dealing
  • Trade usage
132
Q

When is a plaintiff entitled to restitutionary recovery, and how is it measured?

A

When a D is unjustly enriched by a benefit conferred on them by P

133
Q

Parol Evidence Rule

A

Prevents a party to a written K from introducing extrinsic evidence, written or oral, of prior agreements that contradict the terms of the K

134
Q

4 Corners rule

A

a court is permitted only to look at the writing itself (within the “four corners” of the doc) for evidence of intent

135
Q

expectation damages

A

loss in value + other loss
minus
cost/loss avoided

136
Q

Under the perfect-tender rule can a buyer reject delivery if the tender of goods in a single delivery would be unreasonable?

A

Yes bc imperfect delivery

137
Q

True or False

Under the merchant exception to the UCC statute of frauds, a confirmation signed and sent by one merchant to another binds both parties if the recipient has reason to know its contents and does not object within 10 days.

A

True

138
Q

Can an offer still be accepted even without consideration?

A

Yes as long as it hasn’t lapsed or been revoked;

  • but consideration for the offer would make it irrevocable

(offer, acceptance, consideration all separate)

139
Q

If a debtor makes an offer to settle a dispute and sends the creditor a check that the creditor then cashes, can the creditor sue for the original full amount?

A

No, bc cashing the check without protest amounts to acceptance of an accord and satisfaction of the debt

140
Q

when must a buyer accept NCG?

A

If it’s an installment K and the seller has given adequate assurance of the defect’s cure

UNLESS: the non-conformity substantially impairs the value of that shipment and cant be cured

141
Q

Statute of Frauds

A

Ks that fall within the SOF are unenforceable unless put into a writing that:

i) Is signed by the D

ii) Contains all essential terms

142
Q

What duty is owed under damages?

A

Duty to mitigate damages

143
Q

What damages can a non-breaching party recover after a breach?

A

Compensatory damages:
- Expectation damages
(position they would’ve been in if K performed)

  • Consequential damages
    (reasonably foreseeable result of the breach unique to the parties of K)
  • Incidental damages
    (for expenses reasonably incurred as a result of the other party’s breach)
  • but ALWAYS try to mitigate cus regardless that’s going to be deducted.
144
Q

True or False:
A new promise made to pay a debt discharged in bankruptcy is enforceable without any new consideration

A

True

145
Q

best defense to K claim?

A

offer was revoked

146
Q

Promissory Estoppel Damages:

Restitution damages vs. Reliance damages

A

Restitution:
- damages for benefit conferred

Reliance:
- damages for incurred expenses stemming from reasonable reliance on a promise
- cant recover reliance AND expectation just 1

147
Q

define recission and when it is proper?

A

We put the party back in the position they would’ve been in before the K

Proper when there’s been mistake, fraud, or misrepresentation

148
Q

how do you calculate expectation damages for failing to perform a real estate K?

A

contract price minus market value

149
Q

Can a party who commits a material breach by failing to substantially perform recover under the contract?

A

No, bc material breach
a party who breaches a K for service recovers nothing unless they substantially perform

150
Q

Can a party who substantially performs contractual obligations (i.e., commits a minor breach) recover on the contract even though that party has not rendered full performance?

A

Yes

151
Q

Does promissory estoppel apply when there was a K?

A

No, promissory estoppel only applies when there was no K made, but detrimentally relied

152
Q

Is an assignment revocable if not supported by consideration?

A

Yes, a gratuitous assignment (i.e., an assignment that is not supported by consideration) is automatically revoked upon the death, incapacity, or bankruptcy of the assignor.

153
Q

List the types of
Expectation damages vs. Reliance damages

A

Expectation Damages:
- expectation (what was promised)
- incidental (losses incurred thanks to breach)
- consequential (loss bc special circumstances unique to the contracting parties; only recoverable if foreseeable or contemplated while making the K)

Reliance Damages:
- Reliance damages
- Liquidated damages
- Restitution

**When expectation measure is too speculative, place nonbreaching party in same position as if no contract had been formed

154
Q

True or False:

A party assumes the risk of the mistake—and cannot void the contract—if the party knew at the time of the K they had limited knowledge of the facts and accepted this knowledge as sufficient.

A

True

155
Q

Responsibilities after rejection of NCG

A

-> After rejection, the buyer has an obligation to take reasonable care of any goods in its possession until the seller has had a reasonable amount of time to retrieve them

-> If the seller doesn’t retrieve the goods/provide further instructions, then buyer MAY generally choose to store, reship, or sell the goods on the seller’s behalf –doesn’t have to–

–> But the buyer MUST sell the goods when:
* the buyer is a merchant
(regularly deals in goods of the kind involved or who, by occupation, holds him/herself out as having knowledge or skills unique to the goods involved)

  • the goods involved are perishable or threaten to speedily decline in value and
  • the seller has no local agent to whom the goods can be returned.
156
Q

Under parol evidence, can evidence that a partial K is silent on be admitted?

A

Yes, unless:

  • the parties “certainly” would have included the terms in the written K
  • the terms contradict something in the K
157
Q

Does death terminate an option K?

A

No

death terminates a regular offer but not an option bc consideration was given

158
Q

When is payment due under installment Ks?

A

Payment by the buyer is due upon each delivery unless the price cannot be apportioned

Remember: an installment K is when goods are to be delivered in multiple shipments, and each shipment is to be separately accepted by the buyer.

159
Q

Can an offer that has been promised to be kept open without consideration be revoked?

A

Yes, it’d need consideration to make it an irrevocable option K
BUT the revocation is NOT effective until communicated to the offeree.

160
Q

True of False

The parol evidence rule doesn’t bar evidence of prior or contemporaneous communications between contracting parties when the evidence is offered to establish a defense to contract formation

A

true

161
Q

True or False

Under the UCC, a K is formed if the parties intended to contract and there’s a reasonably certain basis for giving a remedy—even if the moment of formation is uncertain.

A

True

162
Q

Are promises of gifts enforcebale?

A

Yes, under promissory estoppel

163
Q

What is a K presumed to be under the UCC in terms of parol evidence?

A

A k for the sale of goods should be presumed to be
partially integrated

164
Q

If Party A has a requirements K with party B and then decides they to change suppliers, can they cancel the K and start purchasing from Party C?

A

No
The buyer’s purchase of the goods from another seller in a requirements K violates the implied duty of good faith and fair dealing

165
Q

Does performance need to be complete for a unilateral K to form?

A

Yes
However, the offeree is not bound to complete performance.

166
Q

Expectation damages

A

what was promised - what was received = expectation damages

167
Q

Reserve auction vs. No-reserve auction

A

Reserve auction:
> default
> goods can only be withdrawn before the hammer falls

No-reserve auction:
goods generally cannot be withdrawn after the auctioneer calls for bids.

*In either type of auction, a bidder has the right to withdraw a bid until the auctioneer announces the completion of the sale.

168
Q

Seller’s ability to bid at an auction sale

A

A winning bidder can avoid the sale or pay the price of the last good-faith bid if the auctioneer:
(1) knowingly accepted a bid by the seller or on the seller’s behalf or
(2) procured the seller’s bid to drive up the price of the goods.

However, the winning bidder may not do so if:
(1) the seller bid at a forced sale* (e.g., a foreclosure sale initiated by a secured creditor) or
(2) the seller gave notice reserving the right to bid.
*(Here, Sellers = the debtors, creditors /9like the bank)

169
Q

Can debt that is certain and undisputed, be satisfied by a check for a lesser amount—even if the creditor cashes the check?

A

No

170
Q

Under the UCC, if at least one of the contracting parties is a nonmerchant, can the new or revised terms are merely treated as proposed additions to the contract?

A

Yes

171
Q

True or False:

An ordinary offer is revocable at the will of the offeror, even if they promised not to revoke for a period of time

A

True

172
Q

If a seller sends something they say is an accommodation is that an acceptance?

A

No, its a counter-offer

if buyer accepts then that will be the K, w no damages bc they accepted new offer.
If buyer rejects then he has no rights against that party bc nothing was accepted/breached.

173
Q

Does a writing/memorandum to satisfy the Statute of Frauds have to be written at the time a promise is made?

A

No, it doesn’t have to be contemporaneous to be effective

174
Q

Between Course of Dealing and Course of Trade, which controls?

A

Course of dealing

175
Q

UCC Evidence Hierarchy

A

From most relevant to least, courts will consider:

  1. Express terms
  2. Course of performance
  3. Course of dealing
  4. Trade usage
176
Q

True or False:
The nonoccurrence of a condition may be excused if the party who benefits from the condition waives it by words or conduct. Once the condition is excused, then the waiving party cannot raise it as a defense.

A

True

177
Q

How can a party to an illegal K recover restitution damages if that party conferred a benefit on the other party?

A

If they:
(1) were justifiably ignorant of the facts that made the contract illegal
(2) were less culpable than the other party, or
(3) withdrew before the contract’s illegal purpose was achieved and did not engage in serious misconduct.

178
Q

When can a court may reform a written contract due to mutual mistake?

A

If:
(1) there was a prior agreement, (2) the parties agreed to put the prior agreement in writing, and (3) there is a difference between the prior agreement and the writing due to the mistake.

179
Q

In real-estate contracts requiring delivery of possession, what is the buyer entitled to after a breach of late delivery?

A

A late delivery breach entitles the buyer to expectation damages measured by the fair market rental value of the property for the time the buyer was denied possession

180
Q

Under the UCC, how can a seller accept a buyer’s offer that requests for shipment of goods?

A

The seller may accept by:
(1) promising to ship the goods
(2) shipping conforming goods, or
(3) shipping nonconforming goods without notice of accommodation. Shipping nonconforming goods without such notice constitutes an immediate breach.

181
Q

Promissory-Estoppel:
charitable subscription

A

A charitable subscription—i.e., a written promise to contribute money or property to a charitable institution—is enforceable on promissory-estoppel grounds without proof of detrimental reliance or substantial injustice.

All that is needed is proof that the promisor reasonably expected to induce reliance on the promise.

182
Q

Can a gratuitous assignment (assignment made without consideration) be revoked by the assignor?

A

Yes, unless
(1) the obligor has already performed
(2) a document symbolizing the assigned right has been delivered
(3) a written assignment signed by the assignor has been delivered, or (4) the assignee has detrimentally relied on it.

183
Q

Is a revocation that hasn’t been communicated valid?

A

No, a revocation is not effective until it is communicated to the offeree.

184
Q

what needs to happen for a third party to get any rights (like payment) for a K between you and another party

A

the OG party needs to assign those benefits to the third party w clear intent in a writing

185
Q

Could the rights if an intended beneficiary be modified/discharged after they vest?

A

no

186
Q

> merchants make a deal on the phone
one sends the other email confirmation binding themselves

Does this satisfy SOF?

A

Yes; the writing only needs to be signed by 1 party when merchants

187
Q

can a promise that was voidable be later re-promised without consideration?

A

Yes; a voidable obligation can later be reaffirmed without new consideration

188
Q

What is it called when someone makes a promise but reserves the right to changing their mind/alternative performances

A

illusory promise

189
Q

when is reformation proper

A

reformation is proper when the K doesn’t reflect something the parties both agreed to

190
Q

can a defaulting buyer claim restitution?

A

yes; they can get a refund of
(any payment they made) minus (damages proven by seller) and a penalty of 20% of the K or $500 wtv is smaller

191
Q

Undue influence

A

the unfair persuasion of a party to assent to a contract

192
Q

Under the UCC must a demand for assurances be in writing?

A

Yes; the demand must be made in writing, and a reasonable time within which to give adequate assurances is limited to 30 days.

193
Q

What are the 2 essential terms in a land-sales K?

A

> Price
Subject matter

194
Q

A misrepresentation renders a contract voidable by the adversely affected party if (1) the misrepresentation was fraudulent or material, (2) it induced assent to the contract, and (3) the adversely affected party justifiably relied on it.

A
195
Q

Negligent infliction of emotional distress occurs under the special-situations theory when the plaintiff suffers serious emotional distress because the defendant negligently (1) delivered an erroneous announcement of death or illness, (2) mishandled a loved one’s corpse or bodily remains, or (3) contaminated food with a repulsive foreign object.

A
196
Q

what type of damages can someone who failed to substantially perform collect?

A

A party who substantially but not fully performs his/her contractual obligations (i.e., commits a minor breach) can recover expectancy or reliance damages. But a party who fails to substantially perform (i.e., commits a material breach) can only recover restitution damages.

197
Q

Cotenants owe each other a fiduciary duty when they (1) jointly purchase property in reliance on each other or (2) acquire their interests at the same time from a common source. This duty arises when the property is sold at a foreclosure sale and purchased by a cotenant, allowing the other cotenants to reacquire their interests by paying their share of the purchase price.

A
198
Q

an assignment will be irrevocable when its given for consideration

if its given for no reason/just to be nice then it can be revoked unless already performed or promissory estoppel

A
199
Q

if K can be performed on the year mark its fine

A
200
Q

when a party thinks the other anticipatorily repudiated and then they stop, they’re the ones who anticipatorily repudiated

A
201
Q

when parties agree to A and B. Then make a contract that only includes B.
they can reform the K bc of mutual mistake, to include Term A

A

MBE Topics (8 decks)

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