REG 6 BK Flashcards
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Effect of most defenses to contracts?
Makes them voidable
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If contract is silent, where is delivery deemed to be?
At seller’s place of business, or if seller has none, the seller’s home.
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What traits must an invention, process, etc. have for a patent to be obtained?
Must be novel, useful, and not obvious to a person who works in the field.
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3 elements of a contract
- Offer and acceptance 2. Exchange of consideration 3. Lack of defenses
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What writing is needed for a written contract?
Any writing will suffice, ie email, text, or a letter about the contract are all fine.
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What is a rescission?
Restores a party to their original position.
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What is a quasi-contract?
Joe gets in a car wreck and an ambulance arrives to take him to the hospital. There is a reasonable expectation of the hospital to get compensated for the ambulance ride, so it is a quasi-contract.
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When does a 3rd party have rights under a contract?
The general rule is that they don’t. However, if the 3rd party is named or specifically described in the contract, they do.
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How can an offeror “opt out” of the mailbox rule?
By stating that acceptance of the offer must be received by a certain date to be effective.
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Does consideration need to be in money? Explain.
No. Giving up your right to purchase another computer for 2 days for a seller is consideration, because you have given up a legal right.
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What is a COD contract? Does a buyer have the right to inspect goods before paying w/ COD contract?
Payment is due on delivery. Buyer cannot inspect before paying. However, he may inspect within a reasonable amount of time after delivery and reject if nonconforming.
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What are the criteria for the warranty of fitness for particular purpose to apply?
1) Buyer relies on seller to select goods 2) Seller knows about buyer’s reliance (ie you go to bike store and a CSR sells you a mountain bike).
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To what does the writing required for goods over $500 apply to?
Only to goods, not to land, etc.
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When the seller is not a merchant, when does risk of loss pass to the buyer?
Upon tender of delivery of goods to buyer.
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Can a dispute over value invalidate a contract?
No, because value is subjective.
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Is a seller to a minor bound by the contract? When can the minor disaffirm?
Yes, the seller is bound by the contract. The minor may disaffirm at any point while a minor or after a reasonable amount of time upon becoming an adult.
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When do ad’s constitute offers?
The general rule is that they do not. An ad is an offer only if it is a promise to perform a very specific act conditioned upon acceptance. An example is if the first 5 to respond to an ad for coffee get a Hulk action figure for only 10 cents.
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What is “fraud in the execution?” What is the effect of “fraud in the execution” on a contract?
Fraud in the execution is someone deceiving you into signing something that you don’t know is a contract, ie making you sign something when you’re drunk, saying it’s for a petition. It makes a contract void.
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How is a shipment of nonconforming goods considered?
As a breach and an acceptance. If a notice of accommodation is sent with the nonconforming goods, then it’s a counteroffer.
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Contracts for sale of goods > $500 must be evidenced by a writing. Exceptions?
“SWAP”– Specially manufactured goods (ie shirts for Puffy’s bowling team), written merchant’s confirmatory memo, admission in court (ie contract admitted in court), performance (ie contract already performed).
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General rule regarding assignment and delegation? Exceptions?
The general rule is that any contract right or duty can be assigned or delegated. Exceptions are when the assignment will change the obligor’s risk (ie with an insurance policy) or the delegated duty involves specialized personal services (ie, you rely on a dude’s professional skill, like with a dottore)
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What is an accord and satisfaction and substituted contract?
Same parties, new agreement
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What is a merchant’s firm offer?
It is a written offer made by a merchant that gives assurances that it will be kept open. It is irrevocable for the time period stated, and if no time period is stated, it is irrevocable for a reasonable amount of time, in no event longer than 3 months.
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When does a quantity not need to be stated in a contract?
When it is an output or requirement contract. An output contract is a contract where a buyer agrees to purchase the entire output of a seller’s business for a stated period of time.
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Requirements for contract modification with common law?
Modifications must be supported by consideration on both sides, whether in the form of services rendered, agreement to pay more, etc.
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Must a seller always inform the buyer of his revocation of his offer?
No. If he finds out indirectly, that’s ok, too.
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What are the common law contracts?
“RISE” = Real estate contracts, Insurance contracts, Services contracts and Employment contracts.
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When are acceptances effective?
When they are dispatched (mailed, email’d, faxed). This is the “mailbox rule.”
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Are promises not to compete enforceable?
The general rule is that they are not. However, there is an exception if a) the promise is reasonably needed to protect a business interest b) the promise is reasonable in duration and c) the promise is reasonable as to distance. An example would be you can’t be hired by Coke and promise never to work for Pepsi. But if you know the secret of how to make Coke, then a contract with a promise not to work for Pepsi is enforceable.
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When are punitive damages available?
Only for fraud.
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What happens with risk of loss when the seller sends nonconforming goods?
It remains with the seller, regardless of shipping terms, unless the buyer accepts the defective goods.
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How can implied warranty of title be disclaimed?
Only by using specific language to disclaim it or by circumstance (ie a judicial sale).
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What must those injured by goods prove for strict product liability?
- Product was defective 2. Product caused plaintiff’s injury 3. Defect made product unreasonably dangerous 4. Seller was in the business of selling this type of goods 5. Product reached user without big change in condition
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When does an employer own a patent?
When created within the scope of employment by an employee, or when the employee used the employer’s facilities to develop the patent.
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Who has the risk of loss on a return of goods?
The buyer does, until the goods are returned.
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Risk of loss passing for merchant vs. nonmerchant seller?
Merchant—passes on actual delivery Nonmerchant– passes on tender of delivery (ie garage sale).
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UCC statute of limitations?
4 years from breach of contract
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When is a modification enforceable under UCC?
When sought in good faith. Consideration is not necessary.
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If a creditor assigns the right to receive a payment to a bank, who must be paid once notice is given? What happens if the creditor is paid directly?
The bank, ie the assignee. If the assignor is paid first, the bank must collect from him.
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When is an assignment by a creditor to receive a payment effective?
When debtor receives notice of assignment.
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What is the amount of compensatory damages for personal service contracts?
Enough money to obtain substitute performance.
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Whose signature is required on contracts that require a writing?
That of the party being sued.
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Define suretyship.
A promise to pay the debt of another.
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What are the 6 types of contracts that don’t require a writing?
“MYLEGS”—Marriage, year, land, executor, goods > $500, suretyship
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Statute of limitations for contract law?
4-6 years from date of breach
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Effect of unilateral mistake on a contract?
None, not a defense, unless other party knew of or should have known of mistake. In such a case, the contract is voidable.
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Effect of fraud in the inducement on a contract?
Makes it voidable.
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GR: Does a promise to give a gift make a contract?
No, it is not enforceable because no consideration has been given. There is no bargained-for exchange.
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What is consideration?
There must be a detriment to the promisee, ie they must do something that they are not legally obligated to do. Need not have monetary value.
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When are revocations, rejections and counteroffers effective.
When received. Unlike acceptances, which are effective when dispatched.
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By when must the offeree accept an offer?
Within the time period specified, or if no time period is specified, within a reasonable time.
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What types of contracts are irrevocable?
- Option contract— offerree “buys time” to make a decision (this is the same thing as giving consideration. Once consideration is given, a contract is irrevocable). 2. Unilateral contracts— a contract where one party gives a promise in exchange for performance. If the performing party starts to perform, the contract is irrevocable. 3. Merchant’s firm offer
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When can a copyright be used without the owner’s permission?
a. Teaching b. Criticism and comments c. News reporting “TCN”—Turner Classic Networks
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What is a patent?
A right to protect an invention, process or design
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When does title revert to the seller with nonconforming goods?
When the buyer rejects the goods.
Absent an agreement, when will risk of loss pass to a buyer?
When the goods are delivered to the carrier.
