NY Contracts (K!) Flashcards
New York Distinction #10: Non-compete Provisions in Employment Agreements
Just like Marinelli
reasonable in TIME and GEOGRAPHIC scope”
necessary to protect ER’s legitimate interests
not harmful to public
not unduly burdensome to EE
New York Distinction #1: Unsolicited Goods
Unsolicited goods are considered an UNCONDITIONAL GIFT. Recipient can do as she likes.
SOL for K
6 years
4 if sale of goods
New York Distinction #2: The Revocation of a Unilateral Contract Offer by the Offeror
Revocation of a Unilateral Contract Offer by the Offeror
Offeror can revoke offer to unilateral K at any time up until the offeree COMPLETES performance
DIFFERENT! Cf. Alcatraz example.
New York Distinction #3: The Irrevocable Offer
Option in Writing is it revocable?
NO! If an offer to enter into a contract is (1) made in WRITING, (2) signed by the offeror or his agent, and (3) the writing specifies that the offer is IRREVOCABLE, then the offeror may not revoke the offer during the stated option period (or for a reasonable period if no option period is stated).
KEY: Consideration is not needed to support the offer. This provision does not apply to MERCHANTS, as they are already subject to the UCC firm offer rule.
New York Distinction #4: Promise of Reward
Promise of reward enforceable?
YES! In New York, a promise to PAY A REWARD for the return of lost or mislaid property is ONLY enforceable if the promise is IN WRITING or the promisor otherwise caused it to be PUBLISHED.
In NY, therefore, oral promises of a reward are NOT enforceable.
New York Distinction #5: Consideration for Real Property
Consideration for Real Property?
Exception when you don’t need consideration.
In New York, if a promise or warranty is written into a deed or conveyance of an estate or interest in real property AND acknowledged or proved in a manner legally sufficient for that deed or conveyance to be RECORDED, the promise or warranty contained therein will not be denied legal effect because of lack of consideration.
New York Distinction #6: Past Consideration
Can past consideration count for consideration? If so, when?
YES. Past consideration is okay!
In New York, past consideration is good consideration when THREE conditions are met: (1) past consideration is expressed in the WRITING, (2) past consideration is PROVED to have been performed, and (3) WOULD”VE BEEN VALID consideration if given at same time.
New York Distinction #7: Infancy
4 exceptions
-
In New York, the following five categories of contracts MAY NOT be disaffirmed solely on the ground of infancy:
- Ks involving marital home
- Ks to perform artistic or athletic services (Bieber)
- Student loan Ks
- Life insurance Ks by those > 14.5
ALSO, 18 years? Then NOT an infant!!!
Can you modifying absent consideration?
YES, but only in some situations. But reqs:
In NY, can modify K absent consideration if (1) in writing and (2) signed by the party against whom it is to be enforced. (~SOF)
Cf common law
New York Distinction #8: Usurious Contracts
-
16%
In New York, consumer and personal loans with an interest rate exceeding 16% are considered usurious. In most instances, loan agreements containing usurious interest rates are considered UNENFORCEABLE.
On occasion, courts will REFORM the agreement by lowering the interest rate to a rate that is legally permissible while the rest of the agreement remains in full force and effect.
New York Distinction #9: Negligence Clauses Contrary to Public Policy
Exculpatory Clauses
-
General rule is that exculpatory clauses are permitted for ORDINARY negligence but unenforceable against WILLFUL/GROSS negligence.
ALSO unenforceable as against public policy in (1) construction Ks exempting owner / GC from liability, and (2) recreational facilities charging fee!!!!
New York Distinction #12: Assignment
valid if no consideration?
Assignment allowed without consideration if in signed writing!
In New York, an irrevocable assignment of rights under a contract will NOT be denied effect solely for lack of consideration, so long as the assignment is in WRITING and SIGNED by the assignor or her agent
New York Distinction #11: Pay if Paid Provisions
Unenforceable: Forbidden wiavers of right to enforce mechanics lien!
What are they: GC says subcontractor don’t get skrilla unless the GC gets skrilla!
New York Distinction #13: Signature Requirement (SOF)
Signature needs INTENT to authenticate!
For a signature to satisfy New York’s Statute of Frauds, the name used (whether written or printed) must be inserted or adopted with intent (actual or apparent) to authenticate the writing in question.
ORAL Transfers of Real Property
exception to SOF (same as CL)
In New York, an ORAL contract for the transfer of an interest in real property is enforceable and does not require a writing so long as the BUYER performs two out of the three following subsequent acts:
i) The buyer makes partial or full payment;
ii) The buyer makes substantial improvements to the property; or
iii) The buyer takes possession of the property.
New York Distinction #15: Statute of Frauds
in addition to M. SOUR!
drink to go with
MR PIB goes well with MSOUR. Yum!
Modification k involving real estate
k to pay compensation re Real estate or finder’s fee (cause they’re SHEISTY!)
Promise to name benefiicary or assignment of Insurance policy or
promise to pay past debt discharged in Bankruptcy
Time of the essence? !
NO just like CL, assumed not to be of the essence.
No material breach, other party must still perform!!
What are all 17 of the distinctions?
#6: Past Consideration #5: Consideration for Real Property #4: Promise of Reward #1: Unsolicited Goods #2: The Revocation of a Unilateral Contract Offer by the Offeror #3: The Irrevocable Offer #7: Infancy BONUS: Can you modifying absent consideration? #9: Negligence Clauses Contrary to Public Policy #8: Usury! #11: Pay if Paid Provisions #10: Non-compete Provisions in Employment Agreements #12: Assignment # 13: signature requirement #14: Transfers of Real Property #15: Statute of Frauds 16 time of the essence (hmm) 17 mitigation in leasing
New York Distinction #17: Mitigation of Damages
CRAY CRAY! (3)
LLs lobby well, apparently
In New York, a landlord is under NO OBLIGATION or duty to the tenant to re-let or attempt to re-let abandoned premises in order to minimize damages. When a tenant abandons premises prior to the expiration of the lease, a landlord has THREE options:
1) The landlord can DO NOTHING and collect the full rent due under the lease from the tenant;
2) The landlord can accept the tenant’s surrender, re-enter the premises, and re-let the premises for the LANDLORD’S own account, thereby releasing the tenant from further liability for rent; or
3) The landlord can notify the tenant that it is entering and re-letting the premises for the TENANT’S benefit. In this case, the rent collected will be apportioned first to repay the landlord’s expenses in re-entering and re-letting the premises, and then to pay the tenant’s obligation. The tenant remains on the hook for any shortfall.
THREE CRITICAL QUESTIONS:
- Has an enforceable contract been formed?
- Has the contract been performed (or, has the performance been excused)?
- What are the remedies for breach?
Has an enforceable contract been formed?
All contracts don’t stink
Four big topics in this chapter:
- Agreement (offer and acceptance)
- Consideration (and related theories for when you have to keep your promises)
- Defenses to formation (incapacity, duress, etc.)
- Statute of Frauds
OFFER
-
*
an offer is a manifestation of a willingness to enter into an agreement (by the offeror) that creates a power of acceptance(in the offeree). (Think of the offer as a caterpillar: cute and fuzzy, but fragile.)
OBJECTIVE test
How specific?
COMMON LAW: All essential terms must be covered in the agreement. This typically means parties, subject, price, and quantity.
UCC: In this universe, the law is more willing to plug gaps and find a contract, even if the agreement leaves out some key terms. Generally, you need only identifyPARTIES, SUBJECT, and QUANTITY! under the UCC—BUT **THE PRICE DOES NOT NEED TO BE STATED! **
Requirements K
Output K
ascertainable quantity under the UCC
TERMINATING THE OFFER (Squashing the Caterpillar)
6!
revoke
constructive revocation: The offeree learns that the offeror has taken an action that is absolutely inconsistent with a continuing ability to contract.
offeree rejects
counteroffer (cf counter-inquiry)
offeror dies
reasonable amount of time
B. IRREVOCABLE OFFERS (Caterpillar’s “Power Shield”)
4! (actually 3!)
Ordinarily free to revoke at any time, but FOUR power shields!
- Option [NY if signed writing no need for consideration!]
- Firm offer: A merchant in the UCC universe can make a firm offer to buy or sell goods (i.e., a binding, free option).
o A firm offer must be written, contain an explicit promise not to revoke, and be signed by the Merchant.
o How long does it last? Either as long as stated in the offer or for a reasonable time period not to exceed 90 days. - [NOT TRUE IN NY!!!!!!!] Offeree has started performanc w/ UNILATERAL K: A unilateral offer to contract cannot be revoked by the offeror if the offeree has started performance.
- Detrimental Reliance –
A. ACCEPTANCE
*
Mailbox Rule
Rule
exceptions 4
*
*
The rule: An acceptance sent by mail is valid when the letter is sent
Does NOT apply:
o If the offeree sends something else first (e.g., rejection, counteroffer). Which opened first?
o To other types of communication (e.g., revocations, rejections).
o To option contracts.
o It is unclear whether this applies to other media (fax, e-mail, etc.).
TRICKY: I send you an offer. You mail back your acceptance. You change your mind and call me up BEFORE I receive your letter to reject the offer. Is there a contract? YES, unless I detrimentally relied on the rejection. (JUST AN APPLICATION OF THE RULE!)
TRICKY: Example 51: I send you an offer. You mail back a rejection. You change your mind and mail back an acceptance a few hours later. Both letters arrive at my house on the same day. Is there a contract? It depends on WHICH I OPEN FIRST!
Example of Implied-in-Fact Contracts -
Haircut or grocery
You can communicate an acceptance without writing or speaking. This communication by gestures or actions is called an “implied-in-fact” contract.
A. COUNTEROFFER
Universe Split
COMMON LAW universe uses the MIRROR IMAGE rule. This means that the terms in the acceptance must match the terms of the offer exactly—or it is not an acceptance, but a counteroffer.
Treat conditional acceptance as just another form of counteroffer. (Look for words like “if,” “only if,” “on the condition that,” “but,” etc.)
The UCC is more forgiving for acceptances that don’t match the terms of the offer exactly. It replaces the mirror image rule with § 2-207.
The main intuition of § 2-207 is that a purported acceptance that does not match the terms of the offer exactly can still count as a legal acceptance in many circumstances. But just because there’s been an acceptance, do not assume that all terms in the purported acceptance will govern the contract.
TWO DISTINCT QUESTIONS: IS THERE ACCEPTANCE WILL THEY CONTROL?
A. COUNTEROFFER: UCC 2-207(2)
4 reqs
The new term in the purported acceptance may control under § 2-207(2), but only if all of the following are true:
A. COUNTEROFFER: Mirror image rule
COMMON LAW universe uses the MIRROR IMAGE rule. This means that the terms in the acceptance must match the terms of the offer exactly—or it is not an acceptance, but a counteroffer.
Treat conditional acceptance as just another form of counteroffer. (Look for words like “if,” “only if,” “on the condition that,” “but,” etc.)
