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97 Cards in this Set
- Front
- Back
intent to contract |
objective manifestation of intent to be bound
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applicability of UCC
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contracts for the sale of moveable goods
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unilateral contract
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promise made in exchange for complete performance
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bilateral contract
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promise made in exchange for another promise or performance
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mutual assent
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offer and acceptance
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offer
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a commitment, containing definite terms, communicated to an identified offerree
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acceptance
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unequivocal assent to terms of an offer; [CL] committment, communicated the right way, mirroring terms of the offer; [UCC] definite and seaonable expression of acceptance communicated by any reasonable medum
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[CL] acceptance
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a committment, communicated the right way by the offeree, to the exact terms of the offer, effective upon dispatch
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[UCC] acceptance
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a committment by the offeree, communicated in a reasonable way to the offeror
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mailbox rule
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an acceptance, post-paid and properly addressed, is effective upon dispatch
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rejection
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refusal of offer by offeree; effective upon receipt
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revocation
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withdrawal of offer by offeror; must occur before valid acceptance made; effective upon receipt
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counter offer
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[CL] additional or varying terms of the original offer; functions as rejection of original offer |
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option contract
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contract formed when consideration is paid to keep offer open for a longer period of time; irrevocable for time specified or a reasonable time if none specified
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merchant's firm offer
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[UCC] a signed wriitng by a merchant stating the offer; irrevocable for time stated or reasonable time if none stated but in no event longer than 90 days without consideration
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offer supported by detrimental reliance
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offer irrevocable when there is sufficient reliance to justify application of the doctrine of estoppel
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consideration
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the bargained-for exchange of legal detriment
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forbearance to sue
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forbearance to do something one is or reasonably believes is legally entitled to do may be consideration
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pre-existing duty rule
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a promise to perform (or refrain from performing) something one is already obligated to perform (refrain from performing) is not consideration
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illusory promise
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promisor may elect to perform or not; not consieration
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moral obligation
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not consideration unless bargained for
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promissory estoppel
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reasonable, foreseeable, and detrimental reliance on the promise can substitute for consideration
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capacity to contract
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if one party is lacking capacity to contract (an infant, mentally infirm), the contract is voidable by the incapacitated party
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duress
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coercive force used to threatened to induce consent; personal duress - contract voidable by coerced party; economic duress - no defense unless other party is cause
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undue influence
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over-persuasive pressure by one party against another
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misrepresentation
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fraud in the inducement - contract void; fraud regarding subject matter renders voidable by innocent party
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unilateral mistake
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mistake by one party regarding material matter - contract voidable by mistaken party if other knew or should have known of mistake
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mutual mistake
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common mistake by both parties about a material matter of the contract of which neither party assumed the risk- voidable by either party
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unconscionability
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unfair advantage taken by one party over another; court may take any reasonable action to render contract fair
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illegality
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subject matter of contract illegal prior to contracting - void; purpose of contract illegal - voidable by innocent party
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statute of frauds
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certain contracts must be in writing to be valid
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one year provision (SoF)
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contracts which cannot be completely performed within one year of formation must be in writing
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full performance exception (SoF - 1yr rule)
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any possibility, no matter how unlikely, that performance can be completed within 1 year removes contract from SoF
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sale of goods contracts (SoF)
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contracts for the sale of goods $500 or more fall within the SoF
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special rule for merchants ($500, SoF)
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merchant's confirmatory memo not obejcted to within 10 days satisfies SoF
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other exceptions (goods $500+, SoF)
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(1) specially manufactured goods where manufacturing has begun; (2) tender and acceptance of goods; (3) pre-payment
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suretyship contracts (SoF)
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collateral promises to answer for the debt of another must be in writing
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main purpose rule (suretyship, SoF)
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promise to answer for the debt of another need not be in writing if promisor motivated by a desire for advantage or benefit
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real property contracts (SoF)
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contracts for the sale of land or buildings
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part performance doctrine (real property, SoF)
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possession of the land and partial payment or improvement to it satisifes the SoF
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sufficient memo (SoF)
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(1) identity of the parties; (2) subject matter; (3) time for performance; (4) price; (5) signed by party against whom it will be enforced
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modification requirements
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[CL] mutual agreement and consideration
[UCC] good faith sufficient |
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accord and satisfaction
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when good-faith dispute regarding duty, agreement to a substitute performance for the disputed one (accord) and performance of the substitute (satisfaction) discharge original debt
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parol evidence rule
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no evidence of any prior oral or written, or contemporaneous oral negotiations may be entered to vary or contradict the terms of an integrated writing
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integrated writing (PE)
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final and complete expression of the agreement
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exceptions to parol evidence rule
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evidence of duress, clarification of ambiguity, mistake, fraud, oral condition precedent, illegality, lack of consideration
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express condition
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present in the writing; must be completely performed
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implied condition
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implied-in-fact: reasonable expectation of parties
implied-in-law: order of performance when not specified |
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constructive condition
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interpreted from relative performance of the parties; need only be sustantially performed
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satisfaction of contracting party
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must rest on good-faith evaluation
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satisfaction of 3rd party
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must be good-faith and neutral; evidence of bad faith is admissable to excuse the condition
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wrongful prevention
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interference with event or failure to act when required; excuses condition
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waiver and estoppel
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waiver of condition by party entitled to it is permissible; may be withdrawn or midified unless other party reasonably, foreseeably, and detrimentally relied on waiver
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relief from forfeiture
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courts may excuse failure of express condition if would induce disproportionate forfeiture
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anticipatory repudiation
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postive statement to the promisee before performance is due, that the promisor will not or cannot substantially perform
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voluntary disablement
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anticipatory breach by actions rather than words
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substantial performance
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incomplete performance so nearly equivalent that it would be unfair to deny the performer the agreed-upon return performance; subject to promisee's right to recover for value of performance left undone
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divisibility
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each party's performance capable of division into 2 or more segments and each has the same number of performances
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impossibility
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supervening unforeseen event of which neither party accepted the risk renders performance objectively impossible; excuses performance
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impracticability
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supervening unforeseen event of which neiher party accepted the risk renders performance as writtn impossible for these particular parties; if temporary, duties suspended until event is over
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frustration
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supervening unforeseen event defeats the underlying purpose of at least still partially executory contract; excuses performance
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anticipatory breach and options
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breach by anticipatory repudiation; non-breaching party who has not completely performed may sue for breach immediately or wait for time of performance due
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minor breach
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defect in non-material aspect of performance
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material breach
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breach of material aspect of performance; discharges duty of performance by non-breaching party
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liquidated damages
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damage amounts expressly agreed to in contract
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requirements for valid liquidated damage clause
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(1) amount of actual damage for breach would be difficult to determine; (2) amount agreed to is reasonable; (3) intent is to provide for damages, not penalty
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effect of liquidated damages clause
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is recovery if clause is valid
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damage calculation: employment contracts
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[employer breach] salary for rest of term + incidental - mitigation; [employee beach] cost of obtaining substitute performance
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damage calculation: sale of goods
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[seller] (1) resale; (2) market price; (3) lost profit
[buyer] (1) cover; (2) market price; (3) breach of warranty recovery |
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damage calculation: sale of realty
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(1) restitution; (2) contract - market price
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damage calculation: construction
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[contractor] expectation + consequential + incidental- mitigation
[buyer] cost to complete + consequentail + incidental - mitigation |
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consequential damages
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foreseeable damages resulting from breach
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reliance
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awarded as recovery to return non-breaching party to position before contract
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restitution
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recovery awarded for benefit conferred to other parrty
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quasi-contract
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equitable remedy whereby non-breaching party is awarded value of benefit conferred
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measure of recovery
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value of benefit conferred
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specific performance
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equitable remedy used when breach of performance and monetary damages insufficient
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reformation
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equiatable remedy used to alter contract writing to conform to actual agreement
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recission
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equitable remedy to remove parties' obligations to each other
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intended TP beneficiary
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named in contract (expressly or by reference) to whom performance directly runs, having a relationship with the promisee which supports the benefit
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incidental TP beneficiary
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not named in the contract, indirectly benefitting; no rights under contract
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creditor beneficiary
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pre-existing obligation owed by promisee which contract is being used to satisy all or part of
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donee beneficiary
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performance is a gift; no rights against promisee
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vesting
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rights become TPB's when learn of promise and take some action indicating assent to it
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vesting effect
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TPB can enforce rights against promisor as exist at time of vesting
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elements of assignment
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(1) description of rights and (2) words of present transfer
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effect of assignment
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terminates rights of assignor and transfers to assignee
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limitations on assignment
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may not assign if: prohbited by law or if assignment materially: increases other party's risk, changes other party's duty, impairs other party's chance of obtaining return performance
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revocability of assignment
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assignment revocable until vested
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elements of delegation
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(1) identity of delegate, (2) consideration
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effect of delegation
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if consideration, delegate is primarily responsible for performance of delegated duty; delegator is surety in any event
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limitations on delegation
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may not delegate if: (1) prohibited by law; (2) prohibited by contract clause; (3) personal duties unless obligee consents
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bona fide purchaser for value
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if a party pays fair value for property and without any notice of defects in title, the property is rightfully theirs.
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expectation damages
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designed to put the non-breaching party in the position it would have been in if the contract had been performed.
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expectation damage calculation
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standard remedy + incidental damages + consequential damages - mitigation
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breach
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a failure to perform or poor performance of a matured duty
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lost volume recovery rule
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if there is (1) large inventory and (2) large demand for the product, the seller may recover the profit lost on a breached sale
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