MBE Rules Flashcards
Under “battle of the forms,” when both parties are merchants, additional terms in an acceptance are automatically included in the K, unless:
(i) Term materially alters original K (i.e., would result in surprise or hardship);
(ii) Offer expressly limits acceptance to terms of the offer; or
(iii) Offeror objects to new terms within a reasonable time after notice of new terms is received.
Under the UCC, when one or both parties are not merchants, a definite and seasonable expression of acceptance sent within a reasonable time is…
treated as acceptance of original offer, and new/different terms are treated as proposed additions to the K that must be separately accepted by offeror
Under the UCC “knock out rule,” different terms in offer/acceptance will…
nullify each other, and the court uses gap-filling provisions to patch holes in K
Under the material benefit rule…
when a party performs an unrequested service for another party, the modern trend permits the performing party to enforce the promise of payment for material benefits received to extent necessary to prevent injustice (unless donative intent)
A promise is binding under the theory of promissory estoppel if:
(i) Promisor should reasonably expect it to induce action on the part of the promisee or a
third person
(ii) Promise does induce such action, and
(iii) Injustice only avoided by enforcement of promise
When both parties are mistaken as to essential element, a K may be voidable for mutual mistake by the adversely affected party if:
(i) Mistake existed when K was formed
(ii) Mistake relates to basic assumption of K
(iii) Mistake has material impact on transaction, and
(iv) Adversely affected party did not assume the risk of mistake
When one party is mistaken as to essential element of K, the mistaken party can void K if:
The party didn’t bear risk of mistake and either:
(i) Mistake would make enforcement of K unconscionable, or
(ii) Non-mistaken party caused the mistake, had duty to disclose or failed to disclose mistake, or knew or should have known the other party was mistaken
A misrepresentation is…
an untrue assertion of fact (i.e., present event or past circumstance)
Fraudulent misrepresentation in a K requires…
(i) Knowing or reckless false assertion of fact;
(ii) With intent to mislead
(iii) The misrepresentation induced assent to the K, and
(iv) Justifiable reliance on the misrepresentation by the adversely affected party
A K may be discharged for impracticability if:
Unforeseeable event has occurred;
• Nonoccurrence of event was basic assumption on which K was made; and
• Party seeking discharge is not at fault.
Frustration of purpose allows frustrated party to rescind K when…
Unexpected events arise that destroy one party’s purpose in entering into K, even if performance of K not rendered impossible
NOTE: Unexpected event need not be completely unforeseeable, but must be so severe it’s not within assumed risks inherent under Kap
A waiver of Miranda rights must be ____, _____, and ______
knowing, intelligent, and voluntary
