Wrong Questions Flashcards
UCC - Both parties are merchants - can one party add additional terms?
If they do, they will be become a part of the contract unless the terms materially alter the offer OR are timely objected to by the initial offeror.
Requirements for Promissory Estoppel (Contracts)
To enforce a promise even without consideration:
(1) A promise
(2) A foreseeable reliance
(3) Actual reliance (induced by the promise); and
(4) Injustice without enforcement
Illusory Promises
Promises in which a party is not agreeing to be bound by any performance.
Ex. Seller agrees to sell Buyer as many widgets as Seller chooses each month.
Implied Warranty of Title can be excluded or modified from a UCC contract by
Specific language OR
Circumstances which give the buyer reason to know that the seller does not claim unencumbered title.
When will a court enforce an oral land-sale contract?
If any 2 of the following occurs:
(1) Payment of part or all of the purchase price
(2) Taking possession of the property
(3) Making substantial improvements to the property
Anticipatory Repudiation and Damages for Contract Breaches
Anticipatory repudiation allows the aggrieved party to reduce their damages because they now have time to enter into an agreement with another party prior to when performance is due.
The party making the anticipatory repudiation claim is still liable for any damages resulting from their noncompliance.
Motion for Summary Judgment - Evidence
Rational fact finder must find the evidence sufficient to establish the element
When must D assert the defense of lack of personal jurisdiction?
In a motion to dismiss or in an answer
Long-Arm Statute
Statute that allows for a court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state defendant, provided that the defendant has a sufficient connection with the state.
Affirmative defenses that are waived if not raised in the first responsive pleading
(1) Lack of Personal Jurisdiction
(2) Improper Venue
(3) Failure of constitutional process
(4) Failure of statutory process
Venue is proper in
(1) The district in which any D resides, if each of the defendants reside in the same state;
(2) the district where a substantial portion of the events occurred
or
(3) where nay of the Ds are subject to personal jurisdiction, if there is no other district in which the action could be brought
A motion for a new trial is appropriate for
Jury misconduct and
Reversible Error
A motion for remittitur
A motion by which a federal judge can reduce the amount of damages when the damages are clearly excessive
Motion for Relief from Judgmenet
Appropriate when there’s a judgment due to mistake, newly discovered evidence, fraud, or jurisdictional defect
Motion for Judgment as a Matter of Law
If filing within the 28 days after entry of judgment, only permissible if the party previously filed the motion before the case went to the jury
Removal
D can remove from state to federal court if the case could have originally been filed in federal court.
EXCEPTIONS:
(1) Federal jurisdiction would only be from diversity jurisdiction and (2) D is a citizen of the state where P filed
If there are multiple Ds, all of the Ds must agree to remove.
D must remove within 30 days of when the grounds become apparent.
If removal is based on diversity jurisdiction, D must remove within 1 year of filing (unless P attempted to thwart removal).
Defenses that must be raised before trial ends or it’s forfeited
(1) Failure to state a claim up on which relief can be granted
(2) Failure to join a necessary party
Defense that can never be forfeited and can be raised even on appeal
Lack of Subject-Matter Jurisdiction
Interlocutory Orders
Orders asserting provision relief or made upon motion or application during trial.
Not final adjudication on the merits.
Can be certified by federal trial courts for an interlocutory appeal when (1) the order involves a controlling question of law as to which a substantial ground for difference of opinion exists; and (2) an immediate appeal from the order may materially advance the termination of the litigation.
After certification, party seeking appeal applies to the federal court of appeals, which has discretion to grant/deny the application.
What’s a condition? (contracts)
A contingency that (1) must be satisfied before a party is obligated to perform OR (2) the happening of which will extinguish one or more contractual obligations.
Fraudulent Nondisclosure
D is silent when D had a duty to disclose.
(1) Nondisclosure that’s material to the K
(2) Aggrieved party reasonably relied on the nondisclosure
(3) Other party had a duty to disclose and failed to do it.
UCC - Consequential Damages - Remedy
Buyer can recover consequential damages that were reasonably foreseeable to the seller at the time the K was entered into.
Unclear if seller has this right. Not expressly stated that seller does/doesn’t.
Specific Performance as a Remedy
Land is considered unique.
Not available as a remedy for (1) personal service or (2) long-term relationships
Assignment
Even if K contains non-assignment clause, courts will typically uphold assignment as a contractual right.
But if assignments are void per the K, then any assignment is negated.
In cases where there’s a non-assignment clause, assignment will just mean a contract breach by the assignor.
Delegation for Personal Service K
Ks for personal service are usually non-delegable.
Performance by delegate will constitute as material breach.
Third-Party Beneficiary Right to Sue
Vests in the following situations
(1) Beneficiary brings suit on the matter before the K is modified or rescinded
(2) Beneficiary changes position in justifiable reliance on K
(3) Beneficiary manifests assent to K at request of promisee and promisor
(4) Express K term stating interest vests
