Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

LAS204 - Contracts > Week 11 - Test 2 > Flashcards

Week 11 - Test 2 Flashcards

1
Q

release of performance

A

discharge

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

lawsuit in which a whistleblower can obtain reward for exposing misconduct involving government contract

A

qui tam

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

When finding discharge due to unmet condition, one should look at whether a deadline was a (1) or a (2)

A
  1. promise

2. condition precedent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

4 ways a contract can be discharged by agreement

A
  1. release/recision (cancellation)
  2. modification of old agreement
  3. accord & satisfaction
  4. novation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

mutual agreement to cancel

A

recision

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

new contract involving parties; cancels earlier contract

A

novation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

5 examples of ways a contract can be discharged by operation of law

A
  1. death
  2. incapacity of a party performing personal services
  3. insolvency (bankruptcy)
  4. by courts (illegality, public policy)
  5. one party is preventing other’s performance and has tendered performance
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

unable to pay debts

A

insolvency

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

federal system of laws and courts for resolution of debts that excee the debtor’s assets or that the debtor is unable to pay when due

A

bankruptcy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

2 types of bankruptcy

A
  1. liquidation/straight bankruptcy (chapter 7)

2. reorganization (chapter 11-13)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

to convert assets to cash, usually to pay debts in dissolution of a business

A

liquidation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

generally involves liquidation of assets

A

straight bankruptcy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

bankruptcy in which debtor continues in operation

A

reorganization

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

2 things that happen right after bankruptcy is filed

A
  1. automatic stay - creditors cannot collect, debtor cannot transfer property (some prior are invalidated)
  2. Debts classified as secured/unsecured and prioritized; assets identified
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

A bankruptcy trustee decides wiether to (1) or (2) executory contracts–until that time, the party is generally (3). The contract may be (4) or (5) even if the contract prohibits it. If the trustee rejects a contract, the other party’s claim becomes and (6) agaisnt the (7), payment of which will depend on whether assets are available to cover the claims.

A
  1. honor (assume)
  2. reject
  3. required to perform
  4. sold
  5. assigned
  6. unsecured claim
  7. bankruptcy estate
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

party’s indication that he is ready, willing and able to perform

A

tender performance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

When looking at breach of ccontract, look at how (1) and (2) interact to form the contractual relationship. Then whether (3) created are violated or breached.

A
  1. promises
  2. conditions
  3. performance obligations
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

event that is not certain to occur. Provision, the fulfillment of which creates or extinguishes a duty to perform under the contract. Failure of this is not a breach; there is no liability,.

A

Condition

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Promise performance is subject to a (1) if the parties agree that performance is contingent on that uncertain event.

A

condition

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

undertaking to perform or refrain from performing some designated act - failure of this is a breach and gives rise to liability

A

promise

21
Q

“I promise to wash your car if it doesn’t rain.”

A

condition

22
Q

breach of a PROMISE by one or more party MAY or MAY NOT excuse the other party’s obligation to perform under the contract - is the breach material?

A

excuse of performance

23
Q

Nonfulfillment of a condition usually will excuse a (1)

A

duty to perform that was subject to that condition

24
Q

What happens to the contract if a promise is not fulfilled (as opposed to a condition?)

A

The other party must still perform but is entitled to damages. (e.g., if a car is promised to get to 125 but doesn’t, still have to buy car but can collect damages. If conditional on 125, may be discharged from buying)

25
Q

Generally, if intent cannot be determined, courts will treat a statement as a (1), not a (2)

A
  1. promise

2. condition

26
Q

Development example – unmet future certain event – what can a developer do who conditions purchase of 500 acres on rezoning within 60 days (and zoning doesn’t happen?)

A
  1. suspend action

2. walk away (discharge)

27
Q

A mutual agreement to end a contract is (1) and (2) serves as the consideration for the agreement. (3) falls under this–discharging one party and allowing substitute of a new party. Alternative to this is (4)–promissor takes offer off table.

A
  1. recission
  2. surrender
  3. Novation
  4. Rescinding
28
Q

In bankruptcy, the trustee chooses whether contracts are (1)–this is one form of (2). Death does not discharge (3) or (4). Another form of discharge by operation of law is (5) and contracts against (6)

A
  1. discharged
  2. discharge by operation of law
  3. mortgage
  4. car payments
  5. illegality
  6. public policy
29
Q

At common law, impossibility did not account for (1). Now it can, but the impossibility must be (2). A (3) cannot get you out of a contract!

A
  1. discharge from the contract
  2. objective (music hall burned down, no possible way to perform v. “I can’t perform”)
  3. bad deal
30
Q

What was the significance of the “accidental gelding” example?

A

Contract to buy stud discharged because no remaining value to contract = commercial impracticability and frustration of purpose (not party’s fault, but purpose frustrated)

31
Q

What was the significance of the example in which a man rented/cancelled rental of an overinflated-price apartment in order to watch a coronation ceremony that was cancelled?

A

earliest case of commercial impracticability/frustration of purpose. Renter was excused because no value to overinflated apartment since coronation was cancelled

32
Q

boilerplate in almost any contract–allows the option to delay/discharge a contract because of an event out of control of parties

A

force majeure clause

33
Q

3 criteria to allow discharge based on impossibility

A
  1. event occurred after contract was made
  2. event was not the fault of the party seeking discharge
  3. language/circumstances don’t dictate that discharge should be denied (e.g., allocation of risk within contract’s terms)
34
Q

Impracticability can arise is the contract is too (1) or (2), even if it is not (3)

A
  1. costly
  2. time-consuming
  3. impossible
35
Q

boilerplate - MUST be in the contract to be considered true

A

time is of the essence clause

36
Q

When looking at breach as excusing performance, look at the (1) of the breach. Was it serious? Did the contract call for (2). If only (3) was given, were the breached parts material or nonmaterial?

A
  1. significance
  2. strict (perfect) performance (no deviations whatsoever)
  3. substantial performance (most of contract performed, with minor deviations)
37
Q

a breach whose deficiency in performance is so central to the contract that it substantially impairs its value (e.g, wrong house design)

A

material breach

38
Q

breach is not substantial, may be cured (e.g., wrong paint color)

A

nonmaterial breach

39
Q

3 things the non breaching party may do if a breach is total and material

A
  1. withold performance
  2. terminate the contract
  3. claim full damages for the breach
40
Q

3 things the non breaching party may do if a breach is NOT total

A
  1. suspend performance
  2. await cure
  3. claim compensation for any loss suffered
41
Q

5 things to look at when determining material/nonmaterial

A
  1. deprivation of expected benefit (principal reason parties made the contract)
  2. adequacy of compensation of loss (can damages be calculated?)(Will they compensate the non-breaching party?)
  3. likelihood of cure (courts would rather try at this than call a material breach)
  4. willfulness of breach (on purpose?)
  5. delay in performance (large delay –> material breach)(time is of the essence enters in here)
42
Q

Courts do not typically allow (1) clauses to apply for buildings–they prefer an objective standard

A
  1. satisfaction clauses (pay for it “if I like it”) (subjective standard)
43
Q

one party has given the other party, by words or action, some sign that they intend to breach the contract

A

repudiation (similar to anticipatory breach–depends on viewpoint)

44
Q

one party believes the other is going to breach the contract (clear-cut; not based on assumption)

A

anticipatory breach (similar to repudiation–depends on viewpoint)

45
Q

2 reasons a party aggrieved by anticipatory breach/repudiation should sue now, rather than wait for the breach or the deadline.

A
  1. prompt disposition while memories are fresh
  2. need for certainty on the part of the non-breaching party (make arrangements to replace an employee who plans to breach, etc.)
46
Q

In the Lady Godiva example, in which she did not pay her hairdresser and farrier was not sure he would pay him, what was the conclusion?

A

Farrier cannot sue–his fear of not being paid is based on assumption. If he wants to be more sure about payment, he can ask for a deposit, or do one shoe at a time.

47
Q

to limit or reduce the amount of damages. Everyone is required to make steps to do so (get replacements, etc.)

A

mitigation

48
Q

regards whistleblowers–reward for revealing misconduct in government contracts

A

Qui tam

49
Q

The Fiesta Bowl whistleblowers did not fall under qui tam because (1)

A

the organization is a nonprofit

LAS204 - Contracts (28 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions