Prins Flashcards
Contracts for the sale of real estate and leases of more than one year
Must be in writing to be enforceable
Parol evidence rule
Written contracts take precedence over oral agreements.
If there is evidence in writing (such as a signed contract) the terms of the contract cannot be altered by evidence of oral (parol) agreements purporting to change, explain or contradict the written document.
Contracts can be terminated or discharged by
+ Agreement of the parties
+ Performance of the contract
+ Impossibility of performance
+ Operation of law
Release of contract
To give up a right as releasing one from their obligation to perform under a contract, or to relinquish a right to an interest in real property, or
To give freedom, as letting out of prison, or
The writing that grants a release.
Assignment
The act of transferring an interest in property or some right (such as contract benefits) to another. It is used commonly by lawyers, accountants, business people, title companies and others dealing with property.
Novation
Agreement of parties to a contract to substitute a new contract for the old one. It extinguishes (cancels) the old agreement. A novation is often used when the parties find that payments or performance cannot be made under the terms of the original agreement, or the debtor will be forced to default or go into bankruptcy unless the debt is restricted. While voluntary, a novation is often the only way any funds can be paid.
A new contract is created which terminates the original agreement and absolves the original party from liability.
Executed
To finish, complete or perform as required, as in fulfilling one’s obligations under a contract or a court order.
To sign and otherwise complete a document, such as acknowledging the signature if required to make the document valid.
Time is of Essence clause
A phrase often used in contracts which in effect says: the specified time and dates in this agreement are vital and thus mandatory, and “we mean it”. Therefore any delay-reasonable or not, slight or not-will be grounds for canceling the agreement.
Impossibility of Performance
If a law changed after the contact was arranged but before the full performance of the contract.
The application of law may change the rights and liabilities of the parties, without their consent. Contracts can be terminated by OPERATION OF LAW under
Bankruptcy
Statute of Limitations
Alteration of contract
Restatement Second, section 20
No contract arises unless both parties have the same meaning in mind. === Peerless
Unilateral agreement
I NOT necessary in creating a valid contract that would be binding and enforceable on all parties.
In Writing
Contracts for the sale of real estate must be ___ _______
in order to be enforceable.
Novation
If the parties to a contact agree to substitute a new contract for the old one, this is called _____.
Unilateral Recission
Which of these is NOT listed as a way that a contract can be terminated?
Performance of the contract
Agreement of the parties
Impossibility of performance
Default - Breach of Contract
Failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work (anticipatory breach).
Breach of contract is one of the most common causes of law suites for damages and/or court-ordered “specific performance” of the contract.
Unilateral agreement
I NOT necessary in creating a valid contract that would be binding and enforceable on all parties.
In Writing
Contracts for the sale of real estate must be ___ _______
in order to be enforceable.
Reformation
The correction or change of an existing document by court order upon petition of one of the parties to the document.
Reformation will be ordered if there is proof that the parties did not intend the language as written or there was an omission due to mistake or misunderstanding.
Quite often a party petitions for reformation when one or both parties realize the effect of the document as written is different from what was expected but it has already been recorded or filed with a governmental agency.
This may have even occurred from a clerical error.
Unilateral Recission
Which of these is NOT listed as a way that a contract can be terminated?
Performance of the contract
Agreement of the parties
Impossibility of performance
Default - Breach of Contract
Failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different
A breach of contact does not relieve the obligations of the breaching party. The non-defaulting party has legal recourses which may be obtained by filing suite in a court of law. These remedies would include:
Rescission Reformation Injunction Specific performance Compensatory damages Consequential damages Attorney fees and costs Liquidated damages Punitive damages
Consequential Damages
Damages claimed and/or awarded in a lawsuit which were caused as a direct foreseeable result of wrongdoing.
Foreseeable means that each side should have reasonably known at the time of the contract that there would be potential losses in the event of a breach.
Reformation
The correction or change of an existing document by court order upon petition of one of the parties to the document.
Reformation will be ordered if there is proof that the parties did not intend the language as written or there was an omission due to mistake or misunderstanding.
Quite often a party petitions for reformation when one or both parties realize the effect of the document as written is different from what was expected but it has already been recorded or filed with a governmental agency.
This may have even occurred from a clerical erri
