WRONG STUFF

Question 1

Mutual mistake can be a defense to the formation of a contract if:

Answer 1

Mutual mistake can be a defense to the formation of a contract if the mistake concerns a basic assumption on which the contract is made.

Question 2

Under U.C.C. Article 2, when a contract provides for payment C.O.D., the buyer:

Answer 2

must pay for the goods on delivery without inspecting the goods

Question 3

What is a “novation”?

Answer 3

A new contract that substitutes a new party to receive benefits and assume duties under the terms of an old contract.

Question 4

In determining whether a service contract is subject to the Statute of Frauds, one should look to the:

Answer 4

date of agreement

Question 5

What are expectation damages?

Answer 5

Expectation damages are intended to put the injured party in the same position as if the contract had been performed.

Question 6

What are consequential damages?

Answer 6

Consequential damages consist of losses beyond those covered by the standard measure that a reasonable person would have foreseen would occur as a result of the breach.

Question 7

Does the availability of consequential damages turn on the breaching party’s awareness of the other party’s circumstances?

Answer 7

Yes, often turns on awareness.

Question 8

Must K damages be foreseeable to be recoverable?

Answer 8

Yes.

Question 9

When are K damages foreseeable?

Answer 9

Damages are foreseeable if a reasonable person in the position of the breaching party would have known at the time the K was made that the damages were likely to occur as a result of the breach.

Question 10

Must K damages also be ascertainable with reasonable certainty to be recoverable?

Answer 10

Yes.

Question 11

Must contract damage awards take into account costs avoided because of the breach?

Answer 11

Yes.

Question 12

Can a nonbreaching party recover avoidable damages?

Answer 12

No, if he does not make reasonable efforts to cut losses after breach, he will not be permitted to recover those damages that might have been avoided.

Question 13

What is the test used for determining if a promisee’s act or forbearance serves as valuable consideration?

Answer 13

Whether the act or forbearance would be of any benefit to the promisor

Question 14

What is the test for a finding of impracticability?

Answer 14

The party to perform has encountered:
(1) extreme and unreasonable difficulty and/or expense; and
(2) its nonoccurrence was a basic assumption of the parties.

Question 15

What happens in a construction K if property owner breaches the K during construction?

Answer 15

Then the builder is entitled to any profit he would have derived from the K plus any costs he has incurred to date.

If the builder has mitigated his damages, any losses that are avoided must be subtracted from this amount.

Question 16

What are the rules for determining whether performance is substantial?

Answer 16

Rules for determining whether performance is substantial are the same as those for determining whether a breach is minor or material: If the breach is minor, performance is substantial; if the breach is material, performance is not substantial.

Question 17

To determine whether a breach is material the court looks at:

Answer 17

the amount of benefit received, the adequacy of damages, extent of performance, hardship to the breaching party, and whether the breach was negligent or willful

Question 18

Is a reasonable delay in perofmrnace a minor breach?

Answer 18

Usually yes unless the nature of the K is such as to make performance on the exact day of vital importance or the contract, by its terms, provides that time is of the essence.

Question 19

To determine whether time is of the essence, the trier of fact examines:

Answer 19

the instrument itself and the surrounding circumstances

Question 20

Does a party collect if a K is divisible?

Answer 20

If a K is divisible, a party who has performed one or more parts is entitled to collect the K price for those parts even if it breaches other parts of the K

However, the nonbreaching party may still have a cause of action for the unperformed units and may withhold counterperformance for those parts.

Question 21

For a K to be divisible:

Answer 21

(1) performance of each party must be divided into two or more parts under the K
(2) the number of parts due from each party must be the same, and
(3) the performance of each part by one party is agreed on as the equivalent of the corresponding part from the other party

Question 22

What is restitution?

Answer 22

Restitution is applied when one party has unjustly benefited or received something of value from the other party without fulfilling their contractual obligations. Restitution seeks to undo the unjust enrichment by requiring the party in receipt of the benefit to return it or compensate the other party for its value.