VA Cards from Outline

Question 1

Is an “agreement to agree” enforceable in Virginia?

Answer 1

No, Virginia requires definite terms for a contract to be binding. Vague promises to negotiate further in the future are not enforceable.

Question 2

What is the presumption for employment contracts in Virginia?

Answer 2

Employment contracts are presumed to be “at will” unless the contract explicitly limits the employer’s ability to terminate the employee.

Question 3

Can a legal detriment or benefit to only one party constitute valid consideration in Virginia?

Answer 3

Yes, Virginia recognizes that a legal detriment or benefit to only one party can still constitute valid consideration.

Question 4

Does Virginia enforce promises made in exchange for past acts?

Answer 4

No, Virginia rejects the “material benefit rule,” and promises based solely on a benefit already received are not enforceable.

Question 5

How does Virginia interpret ambiguous terms in requirements contracts?

Answer 5

Virginia courts consider all documents and may use parol evidence to determine the parties’ intent.

If the court cannot find clear unambiguous language specifically referring to a requirements contract, the parties’ intent will control, which will be determined by a jury.

Question 6

Does Virginia recognize promissory estoppel as a valid cause of action?

Answer 6

No, Virginia does not recognize promissory estoppel.

Question 7

Can a unilateral mistake serve as a basis for equitable relief in Virginia?

Answer 7

No, a party mistaken about a material fact cannot rescind or reform the contract based solely on their error.

Question 8

How does Virginia differentiate between fraud in the factum and fraud in the inducement?

Answer 8

Fraud in the inducement renders a contract voidable by the adversely affected party if there was justifiable reliance.

Fraud in the factum voids the contract entirely if the misrepresentation prevents a party from understanding the essential nature of the transaction.

Question 9

Can a third party be affected by undue influence in Virginia?

Answer 9

A: Yes, a third party may be affected if they did not act in good faith or for value, and were aware of the undue influence.

Question 9

What is the effect of a contract entered by a minor under Virginia law?

Answer 9

Infancy (under 18)—voidable by infant but not by adult (except for reasonable value of necessaries)
In VA—the court must make a three-part inquiry:
1. Does the K provide necessities as a matter of law?
2. is there sufficient evidence that the things supplied were in fact necessary?
3. Were the things supplied actually necessary to this infant?

Question 10

How does Virginia law treat contracts made by someone with mental illness?

Answer 10

A contract is void if the person is adjudicated mentally incompetent; otherwise, it is voidable.

Question 11

What happens if a contract involves illegal conduct under Virginia law?

Answer 11

A contract involving illegal consideration or performance is unenforceable.

Question 12

Can a party recover if they were unaware of the illegal nature of a contract in Virginia?

Answer 12

Yes, if the party was justifiably ignorant of the facts making the contract illegal and the other party knew.

Question 13

Are exculpatory clauses for future negligence enforceable in Virginia?

Answer 13

No, exculpatory clauses for future negligence are void in Virginia.

Question 14

What is an implied-in-fact contract under Virginia law?

Answer 14

An implied-in-fact contract is formed by the conduct of the parties, indicating mutual assent without written or spoken agreement.

Question 15

What is a quasi-contract under Virginia law?

Answer 15

A quasi-contract is created to avoid unjust enrichment when one party confers a benefit on another without an actual agreement.

Question 16

What does Virginia law say about waiving a condition in a contract?

Answer 16

A: Virginia allows the waiver of a nonmaterial condition by words or conduct, but the condition may be reinstated if the waiving party retracts the waiver before the condition is due and the other party has not relied on it detrimentally.

Question 17

What are the Virginia distinctions for the remedies available for breach of contract?

Answer 17

Punitive damages are generally not awarded in contract actions unless compensatory damages are awarded and the breach is coupled with a willful, independent tort.

Attorney’s fees may be awarded at the court’s discretion if the breach is accompanied by fraud.

Question 18

How does Virginia handle the timing of an unreasonably late rejection of goods?

Answer 18

A: Virginia law holds that an unreasonably late rejection of goods is not effective, even if the buyer follows the procedure for rejection.

Question 19

What is the Virginia distinction for buyer’s remedies under UCC?

Answer 19

Virginia recognizes “detinue” as the cause of action for a buyer to obtain goods instead of using the UCC’s remedy of replevin.

Question 20

What are the rules regarding revocation of acceptance in Virginia?

Answer 20

A: In Virginia: The buyer bears the burden of proving revocation within a reasonable time.

1. Remedies for revocation do not apply to anyone other than the seller who is a party to the contract.
2. A buyer’s wrongful exercise of ownership over goods after revocation prevents contract cancellation unless commercially reasonable.
3. Prevailing buyers are not generally entitled to attorney’s fees.

Question 21

Does Virginia follow the Parol Evidence Rule?

Answer 21

Virginia recognizes the parol evidence rule.

The rule does not apply when the writing on its face is ambiguous, vague, or indefinite, or does not embody the entire agreement.

In these cases, parol evidence is always admissible, not to contradict or vary the terms, but to establish the REAL CONTRACT between the parties.

Ambiguities are resolved against the party who drafted the contract.

Question 22

Virginia part Performance exception

Answer 22

Virginia Point of Law: Part Performance

Under Virginia law, the defense of part performance is established by a showing that

(1) the parol agreement relied on is “certain and definite in its terms,”

(2) the acts proved in part performance “refer to, result from, or [were] made in pursuance of the agreement,” and

(3) the agreement was “so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation.”

Question 23

Does Virginia follow the plain meaning rule?

Answer 23

Virginia adheres to the plain-meaning rule.

This rule provides that the objective definitions of contract terms control the meaning of the contract, regardless of whether the meaning corresponds with the actual intent of the parties. Sometimes, courts will go outside the document to clarify the ordinary meaning of terms that are ambiguous or overly vague.

Virginia courts do not rewrite contracts to insert provisions that were omitted by the parties or construe contracts without a time limit as requiring performance for a reasonable time period.

Question 24

Virginia Point of Law: Non-Compete Clauses

Answer 24

Non-compete clauses are not favored by Virginia courts, which will only enforce narrowly-drafted covenants not to compete that do not offend public policy.

A Virginia plaintiff must prove by a preponderance of the evidence that the covenant is reasonable in the sense that it is:

i) No greater than necessary to protect its legitimate business interests, such as trade secrets;

ii) Not unduly harsh or oppressive in restricting the employee’s ability to earn a living; and

iii) Not against public policy.

Question 25

Virgina exceptions to UCC Goods

Answer 25

In general, Article 2 of the UCC will apply whenever the transaction at issue is a sale of goods (generally, tangible personal property).

“Goods” means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale.

___!!!! KEY!!!!_____
Animals, as well as their unborn offspring, are “goods”, but a home is not “goods” because it is not movable.

Question 26

Applying the predominate purpose test in SOF:

Answer 26

In applying the predominate purpose test, relevant factors to consider include (i) the language of the contract, (ii) the nature of the business of the supplier, and (iii) the intrinsic worth of the materials.

Question 27

How does Virginia Treat fraud in the inducement?

Answer 27

In Virginia, fraud in the inducement is grounds for both rescission of the contract and an action for damages.

The fact that the contract is for the sale of goods ”as is” or otherwise with a disclaimer or limitation of damages does not preclude a fraud action.

Question 28

Virginia Point of Law: Express Warranty

Answer 28

In Virginia, a statement commending a good’s performance or a statement of opinion concerning the quality of a good (e.g., “this item is of good quality”) does not constitute an express warranty.

In Virginia, a buyer need not establish reliance on a seller’s express warranty to prevail in a breach of warranty action.

Question 29

Virginia Point of Law: Warranties in Sale-of-Goods Contracts

Answer 29

Lack of privity between the plaintiff and defendant is not a defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence, even when the plaintiff did not purchase the goods from the defendant, if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods.

Question 30

Implied Warranty of Merchantability in Virginia

Answer 30

Virginia Point of Law: Implied warranty applies to both used and new goods.

Elements to prove breach:
1. Seller sold the goods.
2. Buyer was a reasonable user.
3. Seller is a merchant of the goods.
4. Goods were not of merchantable quality at sale.
5. Breach caused buyer’s damages.
6. Buyer notified seller within a reasonable time.

Question 31

Implied Warranty of Fitness for a Particular Purpose (Virginia)

Answer 31

Virginia Point of Law: Warranty applies when the seller knows the buyer’s specific purpose and the buyer relies on the seller’s judgment.

Elements to prove existence:
1. Seller knew the buyer’s particular purpose for the goods.
2. Seller knew the buyer was relying on their skill to select the goods.
3. Buyer relied on seller’s skill or judgment.

Question 32

Breach of Implied Warranty of Fitness for a Particular Purpose (Virginia)

Answer 32

Elements to prove breach:
1. Seller sold the goods.
2. Buyer was a reasonable user.
3. Seller warranted the goods for the particular purpose.
4. Goods were not suitable for the purpose.
5. Breach caused buyer’s damages.
6. Buyer notified seller within a reasonable time.

Question 33

Virginia Disclaimers

Answer 33

A disclaimer that is immersed in the body of a contract and printed in the same size, style, and color as most of the other contract provisions is not “conspicuous.”

Additionally, a blank and unsigned “Limited Warranty” form showing no connection whatsoever to the buyer is insufficient to show that a manufacturer disclaimed all implied warranties that accompanied the sale of its goods.

Question 34

Virginia Point of Law: Contracts Within the Statute of Frauds

Virginia’s Statute of Frauds also includes the following types of agreements: (4)

Answer 34

i) A post-infancy promise to pay a debt incurred during infancy or a post-infancy ratification of a contract made during infancy;

ii) A promise by the executor of an estate to pay a debt of the estate with the executor’s own money;

iii) A real estate brokerage contract; and

iv) A promise to lend money or extend credit in the amount of $25,000 or more.

Question 35

Virginia Point of Law: Part Performance

Answer 35

Under Virginia law, the defense of part performance is established by a showing that:

(1) the parol agreement relied on is “certain and definite in its terms,”

(2) the acts proved in part performance “refer to, result from, or [were] made in pursuance of the agreement,” and

3) the agreement was “so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation.”

Question 36

Virginia Point of Law: Revocation of Acceptance

Answer 36

Reasonable time: Whether a revocation has occurred within a “reasonable” time depends upon the facts and circumstances of each case. For example, when the delay in notification of revocation is brought about because the buyer gave the seller repeated opportunities to correct the defects and the seller procrastinated in accomplishing repairs, the delay is not unreasonable. (Note: The buyer bears the burden of proving, by a preponderance of the evidence, that the revocation was effected within a reasonable time.)

Continued use after revocation: A buyer’s exercise of ownership over the goods (e.g., continuing to drive a car) after revocation is wrongful and can prevent the buyer from cancelling the contract unless such exercise is commercially reasonable. The buyer bears the burden of proving, by a preponderance of the evidence, that the continued use was commercially reasonable. Id., at 389-390.

Attorney’s fees: Generally, a buyer who prevails in a revocation of acceptance action is not entitled to attorney fees. Couch v. Manassas Autocars, Inc., 77 Va. Cir. 30 (2008).

VA EXAM NOTE: Revocation of acceptance is frequently tested on the Virginia Bar Exam.

Question 37

Wrongful Rejection of Nonconforming Goods in VA

Answer 37

Virginia Point of Law: Wrongful Rejection

Under Virginia law, if a buyer claims that the goods are non-conforming, but they do in fact conform to the specifications of the contract, the buyer has a positive duty to accept them and his failure to do so constitutes a wrongful rejection which gives the seller immediate remedies for breach.