NY BAR REVIEW contracts 2019

Question 1

contract entered under mutual mistake of fact by parties is voidable and subject to what?

Answer 1

rescission or reformation

Question 2

mistake MUST be so material that it goes to the foundation of what?

Answer 2

the agreement

Question 3

mutual mistake MUST exist when?

Answer 3

at time contract is entered into and MUST be substl and any court ordered relief is reserved ONLY for exceptional situations

Question 4

unlitateral mistake ALONE is insufficient basis for what?

Answer 4

reformation or rescission, in absence of showing of FRAUD, DURESS, or similar inequitable conduct

Question 5

party alleging mistake MUST show what?

Answer 5

it was material.
it was made unknowingly despite exercise of ordinary care in entering contract.
enforcement of contract would be unconscionable and would result in unjust enrichment of 1 party at expense of other.
parties can be returned to status quo w/o prejudice.

Question 6

person under 18 is what?

Answer 6

infant

Question 7

contract entered into by an infant is NOT what?

Answer 7

VOID

Question 8

contract entered into by an infant is what?

Answer 8

VOIDABLE, at infant’s election and until infant disaffirms his contract, its binding on infant and other contracting party.

Question 9

infant MAY disaffirm contract when?

Answer 9

during infancy or within reasonable time after coming of age

Question 10

common law right of infants to disaffirm laws

Answer 10

civil rights law- infant contract consenting to use of their name or image for advertising purpose..
general obligations law- infant contract to borrow money to purchase home.
general obligations law- married infant’s obligation for hospital, medical, surgical treatment and care for infant or his child.
education law- infant contract for college loan.
arts and culture law- infant contract for actors, dancers, professional athletes.

Question 11

unconscionability and illegality - law

Answer 11

general business law

Question 12

determination of unconscionability is a matter of ____ for the ____ to decide

Answer 12

law.

court

Question 13

unconscionability requires showing of what?

Answer 13

absence of meaningful choice on part of 1 of parties together w contract terms which are unreasonably favorable to other party

Question 14

party MUST demonstrate that contract was what?

Answer 14

procedurally and substantively unconscionable when made

Question 15

substantive aspect considers what?

Answer 15

whether contract terms are unreasonably favorable to 1 party

Question 16

procedural aspect looks to evidence of what?

Answer 16

contract formation process

Question 17

to determine whether there has been procedural unconconscionability in contract formation process, ct MUST assess the following factors:

Answer 17

size and commercial setting of transaction.
whether there was lack of meaningful choice by party claiming unconscionability.
experience and education of party claiming unconscionability.
whether there was disparity in bargaining power.

Question 18

agreements contrary to public policy are generally what?

Answer 18

UNENFORCEABLE

Question 19

general business law prohibits what?

Answer 19

deceptive acts or practices in conduct of any business, trade, commerce , furnishing of services

Question 20

pl MUST allege that def is engaging in consumer oriented conduct which is what?

Answer 20

materially deceptive or misleading and as a result the pl has been injured.

Question 21

deceptive acts are those that are likely to mislead reasonable consumer acting how?

Answer 21

reasonably under the circumstances

Question 22

general obligations law -

Answer 22

NY usury statute

Question 23

NY usury statute provides that loans carrying anual interest rate of more than 16% are what?

Answer 23

prohibited.

subject to limited exceptions.

Question 24

contractual exemptions from liability for negligence are what?

Answer 24

disfavored

Question 25

general obligations law provides that a landlord CANNOT exempt himself from what?

Answer 25

liability for negligence in operation or maintenance of premises, regardless of whether premises is residential or commercial

Question 26

where liability is to a third party, statute re landlord liability does NOT preclude indemnification in what type of lease?

Answer 26

commercial lease, negotiated at arm’s length bw 2 sophisticated parties

Question 27

general obligations law provides that an agreement related to construction, alteration, repair, maintenance of a bldg that purports to exempt owner/contractor from liability caused by own negligence is what?

Answer 27

ag public policy and VOID

Question 28

agreements exempting bldg service or maintenance contractors from liab for neg are what?

Answer 28

VOID and unenforceable

Question 29

business providing garage, parking lot, similar places for housing, storing, parking, repair, or servicing of vehicles may NOT what?

Answer 29

exempt themselves from liab for damages for injury to persons or property resulting from their neg in operation of vehicles or in conduct or maintenance of such business

Question 30

general obligations law provides that owners or operators of pools, gymnasiums, places of amusement or recreation may NOT what?

Answer 30

exempt themselves from liab for damages caused by their neg

Question 31

consideration

Answer 31

an agreement to modify or discharge an obligation shall NOT be invalid for lack of consideration if expressed in writing signed by party ag whom enforcement is sought
GENERAL OBLIGATIONS LAW

Question 32

promise based on past consideration is enforceable if theres a writing signed by whom?

Answer 32

party to be bound

Question 33

promise based on past consideration is enforceable if theres a writing signed by party to be bound and consideration is what?

Answer 33

expressed in writing and proven to have been given or performed and would be a valid consideration but for the time when it was given or performed

Question 34

consideration is NOT required for any ASSIGNMENT if what?

Answer 34

it is in writing and signed by assignor

Question 35

when an offer to enter into contract is made in writing signed by offerer stating that the offer is IRREVOCABLE during stated period of time, the offer is what?

Answer 35

NOT revocable during such period bc of the absence of consideration

Question 36

if writing states that offer is IRREVOCABLE but does not state any period or time of irrevocability, the offer is IRREVOCABLE for how long?

Answer 36

reasonable time

Question 37

Statute of frauds provisions are contained in general obligations law, and generally, every agreement / promise / undertaking is VOID unless what?

Answer 37

it is in writing and signed by party to be charged

STATE OF FRAUDS
STATE TECHNOLOGY LAW

Question 38

every agreement / promise / undertaking is VOID unless it is in writing and signed by party to be charged if it is what?

Answer 38

by its terms, NOT to be performed within 1 year from making thereof or performance of which is NOT to be completed before end of lifetime.
special promise to answer for debt / default / miscarriage of another person.
made in consideration of marrriage, except mutual promises to marry.
subsequent ornew promise to pay a debt discharged in bankruptcy.
contract to pay compensation for services rendered in negotiating a loan or in negotiating the purchase / sale / exchange / rent / lease of any real estate or interest therein.
signed writing is NOT required if contract is to pay compensation to an auctioneer, atty at law, or duly licensed real estate broker or real estate salesman

Question 39

estate / interest in real property (except lease not exceeding 1 year) or trust / power over or concerning real property CANNOT be created / granted / assigned / surrendered / declared, unless by what?

Answer 39

act or operation of law or deed or conveyance in writing , signed by person creating / granting / assigning / surrendering, or declaring the same, or by lawful agent, authorized by writing to do so.

Question 40

contract for leasing of real prop for more than 1 year or for sale of real property or interest therein is VOID unless what?

Answer 40

contract is in writing signed by party to be charged

Question 41

contract to devise real property or establish trust of real prop or any interest in or right w ref to real prop is VOID unless what?

Answer 41

contract is in writing and signed by party to be charged

Question 42

courts MAY compel specific performance in cases of what?

Answer 42

part performance

Question 43

use of electronic signature shall have same validity and effect as what?

Answer 43

use of signature affixed by hand

STATE TECHNOLOGY LAW

Question 44

party seeking to enforce contract as 3rd party beneficiary MUST establish what?

Answer 44

existence of valid contract bw other parties.
contract was intended for its benefit.
benefit was direct rather than incidental.

Question 45

party is INTENDED BENEFICIARY if what?

Answer 45

recognition of right to performance in beneficiary is appropriate to effectuate the intention of parties and performance of promise will satisfy obligation of promisee to pay money to beneficiary OR circumstances indicate that promisee intends to give beneficiary the benefit of promised performance

Question 46

3rd party will be deemed INTENDED BENEFICIARY where anticipated benefit is what ?

Answer 46

sufficiently immediate, rather than incidental, to indicate assumption by contracting parties of duty to compensate 3rd party if benefit is lost

Question 47

INCIDENTAL BENEFICIARY

Answer 47

beneficiary who is NOT intended beneficiary

Question 48

intention to benefit a 3rd party MUST be derived from where?

Answer 48

contract as a whole

Question 49

where performance is rendered directly to 3rd party, it is presumed that what?

Answer 49

3rd party is an intended beneficiary of contract

Question 50

constructive trust is what?

Answer 50

equitable remedy

Question 51

what is the purpose of constructive trust?

Answer 51

prevention of unjust enrichment

Question 52

unjust enrichment does NOT require what?

Answer 52

performance of wrongful act by the 1 enriched

Question 53

four elements required for constructive trust:

Answer 53

confdtl / fiduciary reltship.
promise - express / implied.
transfer of subject res made in reliance on that promise.
unjust enrichment.

Question 54

constructive trust doctrine is NOT rigidly limited and absence of any 1 factor will NOT itself do what?

Answer 54

defeat imposition of constructive trust when otherwise required by equity

Question 55

it is required that party hold property under such circumstances that in equity and good conscience he ought not to what?

Answer 55

retain it

Question 56

employment at will doctrine provides that what?

Answer 56

where an employment is for an indefinite term, it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason

Question 57

there is NO claim for wrongful discharge of whom?

Answer 57

an at will employee

Question 58

exceptions to the at will doctrine

Answer 58

if assurances of job security are made by the employer coupled w express provisions in employee manual limiting employer’s ability to terminate at will, employee relies on assurances, a contract may be implied.

Question 59

there exists an implied duty of good faith on part of employer which limits what?

Answer 59

its ability to terminate employee

Question 60

implied duty of good faith on part of employer does NOT extend to whom?

Answer 60

business or profession other than practice of law

Question 61

when parties set down agreement in clear complete document, writing is enforced how?

Answer 61

according to its terms

Question 62

evidence outside 4 corners of doc as to what was really intended but unstated or misstated is generally what?

Answer 62

INADMISSIBLE to add or vary writing

Question 63

extrinsic and parol evidence is NOT admissible to create what?

Answer 63

ambiguity in written agreement which is complete and unambiguous on its face

Question 64

whether writing is ambiguous is a question of what?

Answer 64

LAW to be resolved by courts