Unenforceable Contracts Flashcards
What is Duress
Physically forced or threatened and extorted to sign a contract
Undue Influence
Influence of a dominant party (Cult)
Unilateral Mistake
one party makes a mistake but that makes the contract enforceable
-unless identity is relevant ie extending credit
Mutual mistake
- Both parties make a mistake
- unenforceable if subject matter is unique
Non est Factum
- Where someone is unable to read or get assistance
- Mistaken as to the nature of the contract
Rectification of a contract (exclusion of Contract)
- Clerical error
- neither party aware of signing
- Clear unambiguous contract ( more then one interpretation)
- No intervening negotiations
Misrepresentaion
Misstatement of material fact (damages value of item)
Innocent misrepresentation/Negligent Misrepresentation
Reasonable grounds the false statement was true
penalty - Expenses and or rescission
Fraudulent misrepresentation
Giving false statements of facts even though you know the truth
Expenses or rescission
Damages (money missed out)
Misrepresentation by non disclosure
no leaving any details out that regard to the contract (omissions) Utmost good faith contracts -insurance -agency -partnership -trust
Privity
Only parties to a contract have rights and responsibilities
novation
replacement of a party with consent
What does Statutory assignment mean and entails
Statutory assignment is when a company gives a contract to another company
-written assignment agreement between assignor and asignee
-signed by assignor
-absolute/complete turnover of the contract
written notice of assignment deliver to promisor
Any contract can be signed unless prohibited or for personal service ie musician
how to be discharged from a contract
1 performance of the contract 2 exercise an option to terminate 3 non occurrence of a condition precedent -something to start a contract 4 occurrence of condition subsequent -something happens contract void 5 occurance of implied term -act of god 6 Doctorine of frysrration -unable to perform a contract and its beyond your control 7 Operation of law -law makes it illegal 8 Subsequent agreement
Breach
Fail to comply with a contract
What is express Repudiation
Refusal to do contract
Party suffer from breach is discharged but can sue for damages or other remedies
Anticipatory Breach
intention to fail resulting in breach
Doctorine of substantial Performance
Breach of Contract when something is done, Put in the position whatever it takes to make the contract whole
Fundamental Breach
Work however no value(worthless)
Exemption clause
Exempts the person who drafted the contract making it so they cant be sued
what do you sue for breach
Monetary Damages
General Damages
Equitable Remedies
Liquidated Damages
What are general Damages
Reliance damage -money expended before the breach
Consequential Damages- Flaw from the breach includes third party liability
Expectation Damages-Lost profit
what are Equitable Remedies
Specific performance
-unique items
Injunction - Court order to cease activity
What are Lqiuidated Damages
Contract set out these clauses so you cant sue
Preset damages
reasonable estimate of costs
