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bar Contracts > Second Issue: Formation of a K > Flashcards

Second Issue: Formation of a K Flashcards

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1
Q

def of K (2 part)

A

1) an agreement
2) that is legally enforceable
- first look to agreement, then to see if enforceable

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2
Q

when looking at an agreement watch what type of info n question about

A

1) the initial communication (offer) and
2) what happens after the initial communication (termination of offer)
3) and who responds and how she responds (acceptance

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3
Q

generally what is an offer?

A

a MANIFESTATION of commitment

- maniffestation of willingness to K.

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4
Q

what to look for to determine if an offer was made

A

look for WORDS and CONDUCT showing COMMITMENT by that person.

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5
Q

what is the basic test if there was an offer

A

w/e a REASONABLE PERSON in the position of the oferee would believe that his or her assent creates a K.

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6
Q

if you see the words “believed or intended” is there an offer?

A

NO. dont care subjectively, look objectively if reasonable person would think offer

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7
Q

what is the effect of a MISSING price term in SALES K for sale of RE (CL)

A

PRICE and LAND description REQUIRED in order for a communication to be an offer to sell land

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8
Q

what 2 things need to be in offer to sell land (cl)

A

1) price and

2) land description

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9
Q

does a sale of RE require price to be included (CL)

A

YES

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10
Q

for a sale of goods (UCC) does a communication to offer to buy or sell goods need a price term

A

NO

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11
Q

what is the rule for price term for sale of goods (UCC)

A

a communication can be an offer to buy or sell goods W/O a price term IF PARTIES SO INTENDED

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12
Q

is a vague or ambiguous MATERIAL term an offer under CL

A

NO. vague or ambigous MATERIAL terms are not an offer

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13
Q

are vague and ambigious MATERIAL terms an offer under UCC

A

NO. vague or ambiguous MATERIAL terms not an offer under either UCC or CL

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14
Q

words to look for vague and ambigious terms for material

A

1) appropriate
2) fair
3) reasonable
- these words cannot create an offer

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15
Q

is a requirements or output contract vague or ambiguous

A

NO and are valid

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16
Q

what is a requirement K`

A

BUYERS requirement to buy from seller

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17
Q

what is an output K

A

SELLER sells to buyer

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18
Q

is a contact for the SALE OF GOODS ok if it states the quantity of goods to be delviered under the K in terms of the buyers requirement or sellers output

A

YES

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19
Q

words to look for when dealing with requirement/ output K

A

1) all
2) only
3) exclusively
4) solely

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20
Q

what is the rule for INCREASE requirement K

A

buyer can increase requirements SO LONG as increase is in the line with prior demands.
- NO UNREASONABLY DISPROPORTIONATE limitation on increase

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21
Q

general rule are advertisement or price quotation offers

A

NO. Gr advertisement or price quotation is NOT an offer

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22
Q

3 x/c that advertisements or price quotations are NOT offers

A

1) an ad can be UNILATERAL offer if it is in the nature of REWARD
2) an ad can be an offer if it SPECIFICS QUALITY and EXPRESSLY indicates who can accept (Ex: first come first serve
3) price quote can b an offer if it is sent to an inquiry

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23
Q

4 methods of TERMINATING an offer

A

1) LAPSE of time: time stated or reasonable time
2) DEATH of a party PRIOR to acceptance
3) WORDS or CONDUCT of offeror: revocation of offer
4) WORDS or CONDUCT of offeree: rejection

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24
Q

what if an offer does not have a time period, how long will it last

A

for a reasonable time

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25
Q

GR does death or incapacity of either party AFTER offer BUT BEFORE ACCEPTANCE terminate an offer

A

YES

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26
Q

what is the X/C that death or incapacity of either party after an offer but before acceptance terminates a K

A

irrevocable offers

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27
Q

how is an offer revoked by statements by offeror

A

later UNAMBIGUOUS statement by offeror to OFFEREE of unwillingness or inability to K

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28
Q

how is an offer revoked by conduct by offeror

A

later UNAMBIGUOUS conduct by offeror indicating an unwillingness or inability to K that offeree is AWARE OF

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29
Q

does offeree need to be aware of (have notice) that oferor revoked offer?

A

YES. oferee needs notice

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30
Q

who is the only part that can REVOKE an offer

A

offeror

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31
Q

is making multiple offers to different offerees a revocation?

A

NO, merely making multiple offers does not make a revocation

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32
Q

difference b/w revocable offers and irrevocable

A 
revocable= possibility 
irrevocable= no possibility 
revoked= actuality
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33
Q

what is the GR about irrevocable offers

A

GR is that offers can be freely revoked by the offeror

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34
Q

what are the 4 x/c that offer cannot be revoked (is irrevocable)

A

1) option k:
2) UCC “Firm Offer Rule:
3) Reliance
4) unilateral K

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35
Q

what is an option K

A

an offer cannot be revoked if the offeror has not only made the offer but also
1) PROMISED to not revoke (or promise to keep open)
AND
2) this promise is supported by payment or OTHER CONSIDERATION

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36
Q

what are the 2 elements needed for an option K

A

1) PROMISED to not revoke (or promise to keep open)
AND
2) this promise is supported by payment or OTHER CONSIDERATION

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37
Q

does an option K need consideration

A

YES

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38
Q

when does Firm Offer Rule apply

A

UCC

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39
Q

what is the UCC Firm Offer Rule

A

an offer cannot be revoked for up to 3 months if

1) offer to buy or sell goods
2) signed, WRITTEN PROMISE to keep the offer open and
3) party is a merchant

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40
Q

how long can a UCC FIRM OFFER be open

A

up to 3 months

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41
Q

what are the elements for UCC Firm offer

A

1) offer to buy or sell goods
2) signed, WRITTEN PROMISE to keep the offer open and
3) party is a merchant

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42
Q

who is a merchant

A

GENERALLY a person in business

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43
Q

does the UCC Firm offer rule require consideration or payment

A

NO

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44
Q

does the UCC firm offer rule NEED to state the time period for which it will stay open

A

NO. Courts will supply a reasonable time frame up to 3 months

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45
Q

does the UCC firm offer rule apply to real estate

A

NO only fucking goods yo

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46
Q

when can an offer not be revoked due to reliance

A

1) where reliance that is
2) REASONABLY FORESEEABLE (must be reasonable reliance)
and
3) detrimental

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47
Q

when can an offer for a unilateral K not be revoked

A

the 1) start of PERFORMANCE pursuant to an offer to enter into a
2) unilateral K makes that offer irrevocable for a reasonable time to complete performance

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48
Q

is mere preparation enough to make a unilateral offer irrevocable

A

NO. need more than mere preparation

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49
Q

what is the general rule when unilateral K is irrevocable

A

when START OF PERFORMANCE

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50
Q

what is the default rule to go to determine either start of performance or preparation unilateral K

A

assume mere preparation

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51
Q

who is the only one who can REJECT an offer

A

oferee

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52
Q

what are the 3 ways a rejection happens by offeree

A

1) counter offer
2) conditional acceptance
3) additional terms

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53
Q

does the additional terms of rejection apply to UCC

A

NO only CL for services

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54
Q

what does a counter offer do

A

terminates offer AND creates a new offer

- Offeree becomes the offeror

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55
Q

does bargaining terminate an offer

A

NO. mere bargaining does not terminate an offer

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56
Q

do counter offers terminate option K

A

NO

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57
Q

can a person later accept a rejected offer

A

NO its dead

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58
Q

what is the x/c that counter offers do not terminate

A

option K
1) if promise to keep open
and 2) consideration

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59
Q

when will you know that someone is a bargain and not a counter offerq

A

if it is QUESTION than just bargain, does not reject offer

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60
Q

conditional acceptance as a rejection

A

terminates offer

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61
Q

words to look for in conditional acceptance

A

1) if
2) only if
3) provided
4) so long as
5) but
6) on the condition that

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62
Q

under CL what is a conditional acceptance

A

REJECTION and counter offer that can be accepted by conduct

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63
Q

under UCC what is a conditional acceptance

A

rejection BUT not a counteroffer that can be accepted by conduct

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64
Q

under UCC can a conditional acceptance be accepted by conduct as a counter offer

A

NO

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65
Q

what does the mirror image rule apply to

A

only CL

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66
Q

what is the mirror image rule

A

a response to an offer that ADDS new terms is treated like a counter offer rather than acceptance
- acceptance must mirror the offer

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67
Q

under mirror image rule what if the new terms or changed are immaterial

A

if change is clearly minor dont do mirror image rule

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68
Q

what is it under UCC where additional or different terms not rejection

A

seasonable expression of acceptance
where there is
1) offer to buy or sell goods and
2) response with ADDITIONAL TERMS raises 2 questions

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69
Q

what are the 2 questions for seasonable acceptance for UCC

A

1) is there a K
- under UCC a response to an offer that ADD new terms or conditions, but does not make terms a condition, are treated as acceptance
2) is there ADDITIONAL term of a part of K

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70
Q

when will the additional term of K for UCC not become part of K

A

additional term is not part of K unless

1) BOTH parties are merchants
2) even if both are merchants the additional term is not part of K is the additional term is MATERIAL or if the additional term is objected by the original offeror

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71
Q

what are the 2 elements for when additional term not part of K

A

1) unless both parties are merchants

2) if additional term is material

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72
Q

what is the general rule that start of performance is acceptance

A

start of performance constitutes acceptance

- starting to perform is treated as an implied promise to perform

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73
Q

what if the offeree has started performance but the offeror has no reason to notice of the performance

A

generally do not have to get notice BUT if offeror has no reason to know of notice must give them notice or not acceptance

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74
Q

what is the x/c that start of performance is not acceptance

A

start of performance is NOT acceptance of UNILATERAL K

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75
Q

what does a unilateral K need for performance for starting

A

COMPLETION OF PERFORMANCE IS REQUIRED

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76
Q

if an offeree starts performance of a unilateral k but does not finish is that a breach

A

NO b/c for unilateral K needs to be a completion for acceptance, just starting is not acceptance so no offer and no breach if not finish.

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77
Q

what are the rules for deals at 1) distance 2) delay and 3) different

A

the offeror and oferee are at different places and there are delays in communication

1) communications OTHER THAN ACCEPTANCE are effective only WHEN RECEIVED
2) acceptance is GENERALLY EFFECTIVE when MAILED
3) if a rejection is mailed before acceptance is mailed, then neither is effective until recieved
4) you CANNOT use the mailbox rule for option K deadline

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78
Q

can you use the mail box rule for option K deadline

A

NO

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79
Q

what is the general rule for communication OTHER THAN acceptance

A

communication OTHER THAN ACCEPTANCE are effective only when RECEIVED

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80
Q

what is the mail box rule

A

acceptance is generally effective when MAILED

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81
Q

what if a person sends a rejection and acceptance both in mail?

A

neither are effective until received. Which ever received first rules

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82
Q

what if a seller of goods sends the WRONG GOODS what does that mean

A

general rule: acceptance AND breach

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83
Q

what is the x/c where seller of goods sends WRONG goods

A

ACCOMMODATION (explanation): counteroffer and no breach

- accommodation must be sent BEFORE the buyer received goods

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84
Q

generally an offer can be accepted only by (2)

A

1) a person a KNOWS about the offer at the time she accepts

2) to whom the person it was made to, offers cannot be assigned

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85
Q

does a person have to KNOW about the offer at the time to accept it

A

YES

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86
Q

can offers be assigned

A

generally NO

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87
Q

x/c that offers cannot be assigned

A

OPTIONS can be assigned UNLESS the option otherwise provides

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88
Q

can a person accept a reward if they did not know of the offer

A

NO

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89
Q

what is the effect of acceptance

A

when an offer has been accepted, it is no longer possible for offeror to revoke or for offeree to reject.
- the caterpillar has become a butterfly LOL

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90
Q

when are contracts not legally enforceable (11)

A

1) LACK OF CONSIDERATION or consideration substitute
2) LACK OF CAPACITY
3) SOF
4) existing laws that prohibit the performance of agreement
5) public policy
6) MISREPRESENTATIONS
7) nondisclosure
8) DURESS
9) UNCONSCIONABLY
10) ambiguity in words of agreement and
11) mistakes at the time of the agreement as to the MATERIAL facts affecting the agreement

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91
Q

when will consideration hardly ever be problem (2)

A

1) commercial transaction

2) sale of goods

92
Q

steps for consideration problem

A

1) identify the promise breaker
2) ask w/e that person asked for something in return for her promise
3) look at person trying to enforce promise and ask what requested legal detriment that person sustained

93
Q

basic steps for consideration problem

A

1) bargained for promise breaker

2) legal determint by P

94
Q

2 things need for consideration

A

1) BARGAINED FOR:

2) LEGAL DETRIMENT

95
Q

what does bargained for mean in consideration

A

asked for by the promisor in EXCHANGE for her promise

- people doing stuff BECAUSE they were asked to do it

96
Q

what is a legal detriment

A

refraining from doing something you have a legal right to do or doing doing you do not have a legal right to do

97
Q

can a promise be consideration

A

YES

- promise can be consideration as another promise

98
Q

what is the x/c that promise cannot be consideration

A

ILLUSORY PROMISE

99
Q

what is an illusory promise

A

someone reserves the right to terminate the agreement at anytime w/o notice
- ALMOST NEVER RIGHT ANSWER

100
Q

what if there is need of notice to terminate an agreement, does that make it illusory consideration

A

NO

- need advance notice, for bargained for and legal detriment

101
Q

does there need to be adequacy for consideration

A

no

- amount of consideration is irrelevant

102
Q

what is the general rule for past consideration

A

PAST CONSIDERATION is NOT consideration b/c not bargained for something you have already done

103
Q

x/c that past consideration is not consideration

A

EXPRESSLY requested by promisor AND expectation of payment by promisee

104
Q

is there a difference in law b/c CL and UCC for k modification as consideration

A

yes

105
Q

pre-existing contractual or statutory duty rule for CL (k modification)

A

doing what you are already LEGALLY obligated to do is NOT NEW consideration for a new promise to pay you more to do merely that.

106
Q

under CL do K modifications require new consideration

A

YES

107
Q

3 x/c for CL that K modificiation requires new consideration

A

1) addition to or change in performance
- any change is a detriment so consideration
2) third-party promise to pay
3) SOMETHING UNEXPECTED THAT HAPPENED AFTER K

108
Q

does UCC have the pre-existing K rule where k modification requires new consideration

A

NO

109
Q

what is the UCC rule for when pre-existing K, what is required

A

GOOD FAITH is the test for changes to an existing sale of goods K
- new consideration is not required to modify a sale of goods K

110
Q

what is the key to determine if part payment as consideration for release

A

w/e debt is

1) DUE and
2) UNDISPUTED

111
Q

what if debt is DUE and UNDSIPUTED can part payment be consideration and release

A

NO

  • if due and undisputed than part payment is not consideration for release
  • If you owe someone NOW then there is no detriment to you for paying less
112
Q

what if payment is not due yet or is disputed can part payment be consideration to release remaining debt

A

YES
- paying early is a detriment
(wont see on bar)

113
Q

generally what are consideration substitutes

A

a promise is legally enforceable even though there is no consideration if there is a consideration substitute

114
Q

what are the 3 consideration substitutes

A

1) a WRITTEN promise to satisfy an obligation for which there is a legal defense is enforceable W/O consideration
2) promissory estoppel (detrimental reliance)
3) seals

115
Q

can a promise to satisfy an obligation for which there is a legal defense enforceable without consideration

A

YES.
Ex: D owes c 1k, legal action to collect debt is barred by SOF but D WRITES written “I know I owe you 1k, but I will pay you 500)

116
Q

elements for promissory estoppel (detrimental reliance)

A

1) promise
2) that is reasonably relied upon
3) detrimental
4) reasonably foreseeable and
5) enforcement is necessary to avoid injustice

117
Q

who lacks capacity to K

A

1) infants- under 18
2) mental incompetents: lacks ABILITY to understand agreement or
3) intoxicated person: IF OTHER PARTY HAS REASON TO KNOW

118
Q

who is the only person who can enforce a K if party lacked capacity

A

THE P

  • if the P is the one who lacked capacity then can enforce
  • If D LACKED capacity than not enforceable K
119
Q

what is the consequences of incapacity

A

1) right to dis affirm by person w/o capacity
- if D then incapacity is a defense
- if P then has a right to enforce

120
Q

who is incapacity only important to for a party

A

ONLY D

121
Q

what is implied affirmation (ratification) if person was incapacity

A

implied affirmation by retaining benefits AFTER gaining capacity then acceptance by ratification
- ex: k when 17 but turned 18 then k valid

122
Q

what is a quasi-k liabilites for necessaries

A

a person who does not have capacity is legally obligated to pay for things that are necessary, such as food, clothing, medical care, shelter, BUT THAT LIABILITY is based on quasi-K not K law

123
Q

is an incapacitated party liable for K enforcement for necessities

A

NO K LIABILITY even for necessaries, lack capacity

- but under quasi-k would be unfair so use that. but not K law

124
Q

how to judges construe SOF

A

very very narrowly because they do not like it

125
Q

acrnyom for things that fall within SOF

A

MYLEGS

1) Marriage
2) Year: service K not capable of being performed w/i 1 year from time period of the K
3) Land sales (interest)
4) Executoryships
5) goods OVER $500
6) Suretyship

126
Q

what does “within” the SOF mean

A

covered by SOF

127
Q

what is suretyship generally

A

promises to ANSWER FOR the debts of another

  • Look for a GUARANTEE
  • answer for is not merely a promise to pay someone else’s debts, but only a promise to pay another’s debts IF THAT person does not pay
128
Q

should you choose the MC answer that says “promises to ANSWER FOR the debts of another for suretyship

A

NO, almost never pick

129
Q

x/c for suretyship

A

MAIN PURPOSE X/C

130
Q

what is the MAIN PURPOSE x/c for suretyshup

A

if the main purpose is for the obligation allegedly guranteeed WAS TO BENEFIT THE GURANTOR then not even that gurantee is w/i SOF

131
Q

what is the requirement for 1 year of service K for SOF

A

service K that is NOT CAPABLE of being performed w/i 1 year FROM THE TIME OF THE contract (more than 1 year) must be in writing

132
Q

what time you do look to see if a service K can be capable of being complete for the 1 year SOF period

A

FROM THE TIME OF THE K

133
Q

is a specific time period is more than a year for service K does it need to be in writing for SOF

A

YES

Ex: employment K for 3 years

134
Q

does termination clause in personal service K matter for a specific time period of more than 1 year?

A

NO still must be in writing, b/c not capable of being completed w/i 1 year

135
Q

for personal service contracts not being capable of being completed w/i 1 year (SOF applies) what if the specific time is MORE than 1 year FROM DATE OF K

A

then must be in writing to satisfy the SOF

136
Q

for a service K what if the task says NOTHING about time, does SOF apply

A

NO

- capable of being performed w/i 1 year so NO SOF.

137
Q

for a service K that is for LIFE does it need to be in writing for SOF

A

NO

-life K never for SOF

138
Q

what is the x/c for transfer of real estate that DOES NOT need to be in writing

A

LEASES OF YEAR OR LESS do NOT need to be in writing

139
Q

is there ANY legal requirement for writing of a lease for 1 year or less than 1 year>

A

NO.

- NO LEGAL requirement for lease that is ONLY 1 year OR LESS than 1 year

140
Q

is a right answer “P claims D agreed to LEASE redacre for 1 year” is this w/i SOF

A

NOOOOO

- will always be fucking wrong

141
Q

can the SOF be satisfied by performance

A

YES.

142
Q

what is the x/c for when there is no writing for SOF for transfer of REAL ESTATE

A

PART PERFORMANCE

143
Q

what is the part performance x/c for SOF

A

part performance satisifies the SOF in transfers of real estate. REQUIRES 2 of #

1) improvements to the land,
2) payment, and
3) possession

144
Q

what 2 of 3 things MUST be met for part performance x/c for SOF for real estate

A

1) improvements to the land,
2) payment, and
3) possession

145
Q

what is the x/c for service K for SOF for FULL PERFORMANCE

A

FULL PERFORMANCE by either party satisifies the SOF

146
Q

does PART PERFORMANCE of SERVICE K satisfy the SOF

A

NO. NO NO

- part performance of service K’s does not matter, does not satisify the SOF

147
Q

x/c for part performance of service K that does not satisify SOF

A

P agrees to work for D for 3 years. P works for 13 months and then D fires her w/o cause. P sues for breach of K. D asserts SOF defense
1) has SOF been satisfied by P’s working 13 months (part performance) NO CANNOT RECOVER UNDER K LAW

2) can P recover under quasi-K law: YES, anytime k law produces an unfair result go to equity

148
Q

since part performance does not for personal service K what can person do

A

sue in quasi- K. Anytime K law produces unfair result, go to equity

149
Q

do leases for ONE YEAR or less NEED to be in writing

A

NO

150
Q

what is the general rule for PART PERFORMANCE K for sale of goods (over 500)

A

part performance of a K 4 sale of goods statifies the SOF BUT
- only up to the EXTENT OF THE PART PERFORMANCE

151
Q

what to look for when part performance for sale of goods that are ORDINARY (over 500) not writing

A

only to the extent of part performance

- look to see if question is about DELIVERED goods or UNDELIVERED goods

152
Q

Is there a SOF defense for part performance of sale of goods is the goods ARE DELIVERED

A

NO. b/c objective proof of part performance.

153
Q

Is there a SOF defense for part performance of sale of goods is the goods ARE NOT DELIVERED

A

YES. no objective proof, not indicate to deliver anymore

154
Q

what is SELLERS part performance x/c for SOF for SPECIALLY MANUFACTURED GOODS

A

if the K is for sale of goods that are to be SPECIALLY MANUFACTURED, then SOF is satisfied as soon as seller makes SUBSTANTIAL BEGINNING

155
Q

what are the 2 part performance rules for sale of goods (not in writing over 500) `

A

1) sellers performance- ORDINARY goods
(a) if delivered than SOF defense
(b) if NOT delivered NO SOF defense
2) sellers part perf.- SPECIALLY MANUFACTURED GOODS

156
Q

rule for sellers part perf. for sale of goods that are SPECIALLY MANUFACTURED

A

SOF is satisfied as soon as seller makes SUBSTANTIAL BEGINNING
- this means that S has done enough work that it is clear what she is working on is specially made (custom made or made to order)

157
Q

does every writing work to satisfy the SOF

A

NO

158
Q

are there x/c for not need writing for SOF

A

yes all the performance x/c

159
Q

what needs to be in writing to be ok for SOF for anything OTHER THAN ART 2

A
  • look at contents of writing OR WRITINGS ALL MATERIAL test
160
Q

what is the material test for writing of SOF

A

anything OTHER THAN UCC 2 NEED ALL MATERIAL TERMS

1) who and
2) what

161
Q

who do you look at for the writing of SOF

A

there is NO SOF defense if the writing was signed by DEFENDANT (person asserting SOF defense)

162
Q

who needs to sign for SOF to be satisfied

A

DEFENDANT

- in order for writing to matter has to be SIGNED BY D

163
Q

what does the writing need to be for UCC

A

the writing must simply indicate that

1) there is a K for the sale of goods
2) AND CONTAIN THE QUANTITY TERM (how many)
- DOES NOT need the time delivered, court will apply “reasonable time”

164
Q

what does the UCC writing requirement need

A

writing indicating a sale of goods and
2) CONTAIN THE QUANTITY TERM (how many)
- generally writing must be signed by D with limited
x/c for transaction b/w 2 merchants where there is a delay in responding
-DOES NOT NEED THE TIME specified, courts will fill gap with reasonable time

165
Q

what is the merchant to merchant delay in responding x/c

A

when

1) 1 merch. receives a
2) SIGNED writing from another Merch. asserting a K to buy or sell a stated quantity of goods
3) the recipent’s failure to timely respond that there is no K provides objective evidence that satisfies the SOF

166
Q

simplied the merchant to merchant delay response x/c for writing

A

1) sale of goods
2) both parties merchants
3) writing but only signed by P to buy or sell and states quantity of goods,
4) and D does not respond, satisfies SOF

167
Q

reason to allow the merchant to merchant delay in response x/c

A

a business person would have responded and denied it

168
Q

what is the ESTOPPEL for SOF

A

1) oral agreement to sell and
2) orally agree to put it in writing, estoppel from D asserting SOF defense
- only essay

169
Q

what is the equal dignity doctrine

A

Rules of law require that person have WRITTEN AUTHORIZATION to enter into K for someone else that the authorization must be in writing ONLY if the K to be signed is w/i SOF
- the authorization must be of “equal dignity” with the K

170
Q

when is WRITTEN PROOF OF AUTHORIZATION to enter into a K for someone else needed

A

that authorization MUST BE IN WRITING ONLY IF the K is to be signed is w/i SOF

171
Q

when is the only time that the authorization to enter into K for someone NEED TO BE IN WRITING

A

ONLY IF THE K is to be signed falls w/i SOF

172
Q

when is WRITTEN proof of a K MODIFICATION need to be in writing

A

1) deal with alleged changed
2) if the deal with the alleged deal needs to be w/i SOF than MODIFICATION needs to be in writing
- if the modification falls w/i the SOF, then the modification MUST be in writing
- Look at the terms of the whole change. If the modification required to k put the whole K in the SOF then needs to be in writing

173
Q

if a modification agreement does not fall w/i the SOF does the modification need to be in writing

A

NO

Ex: decreased 3 year lease to 1 year lease. No need to be in writing

174
Q

what if the K provision REQUIRES that written modification must happen under CL?

A

under CL: K provision requiring that all modifications be in writing ARE NOT EFFECTIVE
- ignore the K langugage

175
Q

under CL if a K provision requires that ALL modifications be in writing is that effective?

A

NO. Only if the modification falls w/i SOF then it must be in writing under CL

176
Q

under the UCC are K provisions requiring WRITTEN MODIFICATIONS effective

A

YES, unless waived

177
Q

what is the difference b/w CL and UCC for provisions says K modifications need to be in writing

A

1) CL: not effective

2) UCC effective unless waived

178
Q

if a K has an illegal SUBJECT MATTER will it be enforceable

A

NO

- if the SUBJECT MATTER is illegal the agreement is not enforceable

179
Q

what if a K has an illegal purpose, will it be enforced

A

if the SUBJECT MATTER is legal than the agreement is enforceable if the P did not have REASON TO KNOW of the D’s illegal purpose

180
Q

what are the 2 reasons courts wont enforce a K b/c against Public policy

A

1) exculpatory K: that exempts intentional or reckless conduct from liability or
2) covenant not to compete: w/o a reasonable need or a reasonable time and place limit

181
Q

what needs to happen for a covenant not to compete to be enforceable

A

a reasonable need or a reasonable time and place limit

182
Q

MISREPRESENTATION test to not enforce an agreement

A

1) statement of FACT BEFORE A K
2) only by 1 of the contracting parties or her agent
3) that is FALSE
4) that is FRAUDULENT or MATERIAL and
5) INDUCES the K

183
Q

is wrongdoing required for misrepresentations

A

NO

- honesty/ innocent NOT RELEVANT

184
Q

when must the statement of fact exist for misrepresentation

A

BEFORE THE K

185
Q

does a person need to rely upon the fact for misrepresentation

A

YES

186
Q

generally does a person making a K have a duty to disclose what she knows

A

no

187
Q

what is the x/c that person making a K does not have a duty to disclsoe what they know

A

1) fiduciary-like relationship

2) concealment: pained over something so someone couldnt see it

188
Q

difference b/w sale of goods no duty to disclose and RE duty to disclose

A

1) goods: NO DUTY TO DISCLOSE

2) RE: must disclose LATENT MATERIAL DEFECTS

189
Q

2 different types duress

A

1) physical

2) economical

190
Q

elements for economic duress

A

1) bad guy: improper threat which is usually THREAT TO BREACH EXISTING K
AND
2) “vulnerable guy”: NO REASONABLE ALTERNATIVE

191
Q

undue influence

A

1) special relationship b/w parties and

2) improper persuasion of the weaker party

192
Q

do courts generally recognize unconscionability

A

NO

193
Q

what are the elements for unconscionability

A

1) PROCEDURAL unconscionability:
2) SUSBSTANTIve unconscionability:
3) tested at time of the AGREEMENT was made
4) by the court

194
Q

what are the 2 types unconscionability that must be present

A

1) PROCEDURAL unconscionability:

2) SUSBSTANTIve unconscionability:

195
Q

what is PROCEDURAL unconscionability:

A

the agreement process

196
Q

what is SUSBSTANTIve unconscionability

A

the harshness of the terms

197
Q

what time do the courts look at for unconscionability

A

AT THE TIME OF CONTRACTING

198
Q

do courts look at unconscionability any time

A

NO only at the time of K

199
Q

elements for ambiguity to not enforce K

A

there will be NO K if

1) parties use a MATERIAL term that is open TO AT LEAST 2 REASONABLE INTERPRETATIONS and
2) each part attaches a different meaning to the term and
3) neither party knows or has reasons to know th term is open to at least 2 reasonable interpretations

200
Q

what if 1 party knows that there are 2 reasonable interpretations for ambiguity

A

then K of the terms of the person that understood them

201
Q

generally do mutual, material mistake of fact matter

A

no

202
Q

what is difference b/w misrepresetnation and mistake of fact

A

misrep: seeking relief b/c what the OTHER PARTY said was incorrect
- generally relief
mistake: relief b/c what HE DETERMINED ON HIS OWN was wrong
- generally no relief

203
Q

what is the general rule for mistake of law

A

each party bears OWN RISK OF MISTAKE

204
Q

when is the only time mutual material mistake of law will work

A

1) only if BOTH parties are mistaken (not just uncertain) about EXISTING facts
2) even then, no relief for mistake if the person seeking relief bears the risk of mistake

205
Q

when will UNILATERAL mistake be allowed to not enforce K

A

1) 1 person made mistake and

2) other knows of mistake

206
Q

under the mailbox rule when is acceptance

A

acceptance becomes effective when the LETTER IS PROPERLY addressed and put into the mail.
- does not apply if address is wrong

207
Q

does the mail box rule apply to option K deadlines

A

no. acceptance of an option is effective ONLY when received by the offeror

208
Q

what is the test for UCC modification of K

A

new consideration not needed, only need GOOD FAITH

209
Q

under the UCC is consideration needed for modification of a K

A

NO only need GOOD FAITH

210
Q

what is a merchant’s confirmatory memo

A

K b/w merchants , if 1 party w.i a REASONABLE TIME after an oral agreement is made, sends the other party a written confirmation of the agreement that is sufficient under the SOF to bind the sender, it will also bind the recipient IF

1) he has reason to know of the confirmations contents and
2) does not object to it w/i 10 days of receipt.

Sender must: set out terms of agreement and be signed by sender to bind him and the recipient

211
Q

what is a merchant’s confirmatory memo

A

K b/w merchants if 1 party
1) w/i a REASONABLE TIME after an oral agreement is made, sends to the other party a written confirmation of the agreement

2) that is sufficient under the SOF to the bind the seller (signed by party etc), it will also bind the receipt IF

3) he has reason to know of the confirmations contents and
4) does not object to it w/i 10 days of receipt.

Sender must: set out terms of agreement and be signed by sender to bind him and the recipient

212
Q

what is an offer

A

an expression of willingness to enter into a bargain, made with definite terms so that the other party could reasonably believe that he could conclude the bargain by accepting

213
Q

what is acceptance

A

an assent to the terms of the offer

- acceptance must be unequivocal and communicated to offeror

214
Q

what to always do in K question

A

UCC or CL
- state which applies and why

K formation

1) lay out offer and def
2) lay out accept and def
3) lay out consideration and def

215
Q

what is perfect tender and what does it apply to

A

UCC

1) the goods and their delivery must conform to the contract in every way

216
Q

ucc terms needed for valid K

A

1) just quantity term
DOES NOT need the time to be delivered
- courts will supplement with UCC Gap fillers “reasonable time”

217
Q

UCC does delivery time need to be included

A

NO.

  • only needs quantity term
  • courts will supplement with UCC Gap fillers the “reasonable time” for delivery
218
Q

GR: for shipping non-conforming goods

A

Gr: shipping non-nonconforming goods is both a breach and acceptance, b/c violates perfect tender
x/c: accommodation

219
Q

x/c for shipping non-conforming goods

A

Accommodation letter (seasonably notify buyer of accommodation) ]

  • THEN COUNTER-OFFER
  • B is free to accept or reject goods
220
Q

what is an accommodation shipment mean

A

it is a counter offer, B free to accept or reject

221
Q

are option K terminated by a rejection

A

NO.
- option K cannot be terminated before time ends, even if rejection during the time.
x/c: but if seller relied upon rejection, cannot recover later

222
Q

does an option K survive death of offeror

A

YES.
- GR: offer ends upon either party dies before acceptance
x/c: option K survives death, accepted anytime during option K

223
Q

requirement K def:

A

B promises to buy from certain S all goods it requires and S agrees to sell that amount to buyer

224
Q

Do counter offers terminate option K’s?

A

NO

225
Q

Does bargaining terminate offer?

A

NO

226
Q

How to know a bargain from rejection?

A

QUESTIONS ARE ALWAYS BARGAINING

bar Contracts (8 decks)

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