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K > Terms? > Flashcards

Terms? Flashcards

1
Q

A K is not rendered invalid b/c one party has the right to cancellation while the other does not

A

Laclede

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2
Q

Traditional rule: A modification of a K is itself a K, which is unenforceable unless supported by consideration on
both sides

A

Angel

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3
Q

UCC Rule: An agreement modifying a K for the sale of goods needs no consideration to be binding

A

UCC Rule

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4
Q

(Exception to Baseline Rule): Enforce modification, even if don’t have consideration on both sides, if:

  1. Parties voluntarily agree
  2. The promise modifying the original K was made before K fully performed on either side
  3. Underlying circumstances which prompted the modification were unanticipated by the parties
  4. Modification is fair/equitable
A

RS 89/Angel

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5
Q

A condition can be waived by one party to the K if:

  1. Known/voluntary relinquish of right
  2. The condition in the K is solely there to benefit the party waiving that condition
  3. The condition is not a material part of the agreed exchange (immaterial term)
  4. A waiver condition needs to be express/explicit
A

West

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6
Q

A condition can be waived and withdrawn if:

  1. Other party receives notification of withdrawal of waiver while there is still reasonable time to cause the
    condition to occur or an extension is given
  2. The reinstatement of the condition is not unjust because of a material change of position by the other
    party
A

RS 84

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7
Q

Subjective Theory of K Formation

A

No assent or K unless there is an actual meeting of the mind (subjectively both parties understood the terms to mean that same thing)

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8
Q

Objective Theory of K Formation (Dominant Theory)

A

Assent is determined based on what party says/does, not what thought

If party manifests assent, there is assent

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9
Q

Principle I

A

If the parties subjectively attach different meanings to an expression, neither party knows that the other attaches a different meaning, and the two meanings are not equally reasonable, then the more reasonable meaning prevails

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10
Q

Principle II

A

If the parties subjectively attach different meanings to an expression, neither party knows that the other attaches a different meaning, and the two meanings are equally reasonable, neither meaning prevails

(may have no K if cannot fill hole)

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11
Q

Principle III

A

If the parties subjectively attach the same meaning to an expression, that meaning prevails even though it is unreasonable

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12
Q

Principle IV (information forcing rule)

A

If the parties, A and B, attach different meanings, alpha and beta, to an expression, and A knows that B attaches meaning beta, but B does not know that A attaches meaning alpha, the meaning beta prevails even if it is less reasonable than meaning alpha

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13
Q

Mental assent of parties is not requisite for the formation of a K

A

Lucy

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14
Q

If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is
immaterial except when an unreasonable meaning which he attaches to his manifestation is known to the other
party

A

RS 71

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15
Q

Courts look to outward expression of person as manifesting his intention rather than to his secret and unexpressed
intention

A

Lucy

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16
Q

A person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement

A

Lucy

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17
Q

Meaning consistent with trade usage is the reasonable one

A

Sprucewood

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18
Q

Other party starts to perform K but falls in SoF and does not satisfy SoF b/c party has not signed (party w/
defense), party with defense wants out – have SoF defense – K not enforceable o

Other party can get one of three remedies out of court (Court decides)

A
  1. Reliance damages
  2. Restitution – value other party conferred upon SoF defense party that they did not deserve (get
    unjust enrichment back)
  3. Expectation damages – measure value of what conferred
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19
Q

To determine what term interpretation is reasonable, look to trade usage

Exception: When other party is a neophyte to the trade (not a member)

Exception to exception: If you had actual knowledge of trade usage or term so generally known

A

Frigaliment/Chicken

20
Q

To determine reasonableness, look at:

  • Trade usage
  • Realities of the market/market price
  • Dictionary
  • Testimony at trial
A

Frigaliment/Chicken

21
Q

Gap filler rule: Look at intent/shared purpose to try to fill the hole

A

Spaulding

22
Q

Every instrument in writing to be interpreted:

  1. With a view to the material circumstances of the parties at the time of the execution
  2. In the light of the pertinent facts within their knowledge
  3. And in such a manner as to give effect to the main end designed to be accomplished
A

Spaulding

23
Q

A written K is usually enforced in accordance with the ordinary meaning of the language used in them and without recourse to evidence beyond the K itself as to what parties meant

A

Beanstalk

24
Q

Parol Evidence Rule- applies to written K only

  1. Is there an integrated agreement? (Is the K the final statement/agreement about something/not everything)
  2. Is agreement partially integrated or completely integrated?

-Complete/total integration (full complete final statement of everything): Can’t let parol evidence in – no additional terms – neither party can
present evidence that part of our agreement was this thing that isn’t in
the written K

  • Partial integration (final statement of some things): Can bring in evidence of consistent terms (inconsistent terms out) – does not contradict the written K
  • Exception: can introduce parol evidence to clarify ambiguity
A

Hayter

25
Q

How to show if complete or partial integration:

*Whether this is the type of K term that the parties naturally would have excluded from the writing even if it was part of their agreement

*If want K to be complete/total integration, say in K this is a complete and total integration – entirety of agreement (“integration clause”, “merger clause”):
• Every prior agreement merged into this final doc
• Make sure merger clause was intentionally put there by both parties
• Is it obviously incomplete?

A

Esbensen

26
Q

The terms of a K may be reasonably certain even though it empowers one or both parties to make a selection of terms in the course of performance

A

Cheever

27
Q

For a K to be valid, terms must be reasonably certain

A

Cheever

28
Q

Although parties may have had and manifested the intent to make a K, if the content of their agreement is unduly
uncertain and indefinite, no K is formed

A

Cheever

29
Q

A K is sufficiently definite and certain to be enforceable if the court can figure out what the agreement was

A

Cheever

30
Q

A K may be enforced even though some K terms may be missing or left to be agreed upon, but if the essential terms
are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no K

A

Cheever

31
Q

Courts can fill material gaps but they wont if there is no standard/basis for filling the gap

A

Cheever

32
Q

An agreement to be finally settled must comprise all the terms which the parties intend to introduce into the
agreement

A

Ridgeway

33
Q

Some gaps can be filled by operation of law (State or local statute fills in gap)

A

Berg

34
Q

Parties may resolve gaps by agreeing how to fill gap (subsequent agreement)

A

Berg

35
Q

It is not necessary for a writing to contain every possible contractual provision to cover every contingency in order
to qualify as a completed binding agreement (all K’s have gaps)

A

Berg

36
Q

Courts should fill gaps in Ks to ensure fairness where the reasonable expectations of the parties are fairly clear

A

Rego

37
Q

Courts should not impose on a party any performance/obligation to which he did not and probably would not have
agreed – don’t want to fill gaps to create duty party would not agree to

A

Rego

38
Q

Lack of specifics in construction K is not a problem – customary that other details worked out later – use trade
usage to fill in everything that is not price

A

Saliba

39
Q

Industry custom can fill in gaps

A

Crook

40
Q

Course of dealings can fill in gaps – parties have done this before

A

Crook

41
Q

General contractor cannot expand subcontractor’s obligations beyond reasonable expectation/trade usage

A

Crook

42
Q

Industry custom and circumstances surrounding the particular project dictate the kinds of provisions the
subcontractor should reasonably have expected in its final subcontract

A

Crook

43
Q

Terms have to be reasonably certain

A

RS 33

44
Q

An agreement to agree on a future rental was unenforceable for uncertainty

A

Schumacher

45
Q

A mere agreement to agree in which a material term is left for future negotiations is unenforceable

A

Schumacher

46
Q

An agreement to agree is not an agreement

A

Schumacher

47
Q

If the agreement includes a methodology/standard/tells you how to resolve the uncertainty, then it is not too
uncertain

A

Schumacher

K (9 decks)

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