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76 Cards in this Set
- Front
- Back
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What are the elements of an offer?
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1. Manifestation of intent to k by conduct or words
2. definite & certain terms 3. communicated to an identified offere |
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True or False:
Catalog sent in response to information request is offer? |
True
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What is anticipatory repudiation?
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Occurs where a promisor, prior to the time set for performance of her promise, indicates she will not perform when the time occurs
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Anticipatory repudiation serves to excuse conditions if?
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1. there is an executory bilateral k w/executory duties on both sides and
2. words/conduct of the promisor unequivocally indicates she cannot or will not perform when time comes |
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What happens in a unilateral k where the nonmistaken party knows of the mistake?
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Mistaken party can avoid the k.
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What happens when only 1 party entering in k is mistaken in fact?
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Unilateral mistake will not prevent formation of k unless nonmistaken party is or had reason to know of the mistake
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If there is a mutual mistake by both parties concerning a basic assumption?
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K may be voidable by the adversely affected party
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Under the UCC does a promise to modify an existing k require consideration?
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No. Enforceable w/out consideration.
Proposal must be in good faith. |
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True or False:
Under UCC if merchant accepts another merchant's offer and proposes additional or different terms there is not acceptance. |
False.
if merchant accepts another merchant's offer and proposes additional or different terms there is acceptance and k is formed. |
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What 2 things can a buyer do if he receives non-conforming goods?
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1. reject them and cancel the k or sue for damages
2. accept any commercial units, reject the rest, and sue for damages |
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True or False:
Buyer does not retain the right to sue for damages of non-conforming goods? |
False.
Buyer retains right to sue for damages for non-conforming goods. |
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Acceptance occurs when a buyer does what?
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1. indicates that he will accept the good after a reasonable opportunity to inspect them
2. fails to reject them w/in a proper time OR 3. does any act inconsistent w/the sellers ownership |
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Under UCC:
If the k is b/w merchants, the additional terms in the acceptance are included in the k UNLESS? |
1. additional terms materially alter k
2. the offer expressly limits acceptance to the terms of the offer OR 3. the offeror objects w/in a reasonable time |
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Revocation:
Does receipt of revocation require knowledge that the "letter is a revocation letter" |
No.
receipt does not require knowledge of revocation but merely possession of it. |
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What is objective impossibility?
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No one could have performed thus k duty may be discharged
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What is subjective impossibility?
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Defendant could not perform thus k duty to perform may be discharged.
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If there is a k term that prohibiting assignment of a k-what happens w/delegation and assignment?
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Prohibiting assignment of k BARS only the delegation of the assignors duty NOT the assignment of the assignor's right to payment.
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True of False:
Under the UCC-shipment of non conforming goods is both acceptance and breach? |
True.
Unless notice of accommodation given. |
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Offeror has power to revoke an offer any time before acceptance, even if offeror has promised to keep the offer open UNLESS?
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1. option k-consideration has been paid
2. Offeree reasonably relies on the offer to his detriment, OR 3. offer is a merchant's firm offer |
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If good are nonconforming-what remedy?
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Damages based on k price (minus) the price to buy conforming goods.
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A contract may be discharged by and accord and satisfaction.
What is an accord? What is satisfaction? |
Accord: An agreement in which one party to an existing k agrees to accept, in lieu of performance that he is supposed to receive from the other party, some other, different performance
Satisfaction is the performance of the accord agreement. |
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True or False:
Accord and satisfaction can be accomplished by tender and acceptance of a check marked "payment in full" |
True.
Where a bonafide dispute as to the amount is owed |
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True or False:
A contractor's duty to construct a building is discharged by the destruction of the work in progress. |
False.
A contractor's duty to construct a building is not discharged by the destruction of the work in progress unless the other party has assumed the risk. Construction not rendered impossible. he can rebuild. |
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For non conforming goods, if buyer wants to properly reject what does he do?
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He must within a reasonable time after delivery but before acceptance seasonably notify the seller of the rejection.
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Does the mailbox rule apply to option k?
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No. Acceptance is effective when received by offeror. Not when it was dropped off in the mail.
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Where an owner breaches a construction k after construction has been started but before construction is complete, what can builder recover?
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Any profit he would have derived from the k plus any costs he has incurred to the date of the breach aka
contract price minus cost of completion |
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Does a contract for service need to be supported by consideration?
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Yes.
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What's restitution?
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Unjust enrichment
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Can an agreement affecting a 3rd party bene be modified without the 3rd party's consent if what?
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If 3rd party bene rights have not yet vested
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When do 3rd party bene rights become vested?
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When 3rd party assents in a manner requested by the parties, detrimentally relies on the k, or brings a lawsuit to enforce.
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What's promissory estoppel?
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brief answer: promise enforceable to prevent injustice
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Are k's for personal services subjected to specific performance?
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No 181
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Can a buyer accept an entire shipment (10 non conforming and 90 conforming) and sue for damages?
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Yes 185
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Is a writing required for specially manufactured goods and seller has made a substantial beginning to manufacture?
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No writing needed.
exception to SOF 190 |
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What is the standard for discharge of contractual duties by impossibility?
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Objective ie anyone can perform the duties p.231
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When can physical incapacity excuse k performance?
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only where services are deemed unique p.231
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UCC:
Is quantity required in requirement k or output k? |
No. Still an enforceable k.
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What is a merchant firm offer?
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1. offer by merchant +
2. signed writing which gives assurance it will be held open, if ≠ time stated, 3. period of irrevocable ≠ exceed 90 days |
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Battle of the forms:
If offeree (seller) accepts the offer and at the same time makes a material alteration-what is the result? |
k under the terms of the original offer
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Battle of forms:
If there is acceptance w/non material change-what is the result? |
change is incorporated into k unless offeror rejects w/in a reasonable period time (if offeror rejects the change is out)
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Battle of forms:
What is a Material change? |
One that substantially affects the economic risks, right & remedies
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If non-conforming goods-what are the buyers options?
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1. Accept goods and pay k price
2. Notify seller of non conformity and reject, sue for damages 3. Accept in part and reject in part |
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To have a valid surety/guarantee k must it be in writing?
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Yes or else it violates the SOF.
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SOF
What is the main purpose rule for the surety/guarantee? |
doesn't have to be in writing if main purpose of the guarantee in making the promise was to benefit himself
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What's the rule for mutual mistake?
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If that mistake goes to heart of agreement = grounds for recission
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What is the rule for unilateral mistake?
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This mistake will not prevent k from being enforced but in all unilateral mistake situation,
if the non mistaken party knows or has reason to know they ≠ take advantage of the mistake and get the bargain |
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Modification:
Is consideration needed for CL or UCC? |
CL: new consideration
UCC: None. just good faith |
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What evidence is NOT barred by PER (exceptions)?
There are 7 |
a. of fraud
b. Duress c. Mistake d. Lack of consideration/failure e. Illegality f. Condition precedent g. Trade usage |
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Seller always has until when to cure any defects?
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Date of performance.
exception: If the seller reasonably believes that the goods were conforming then need to give seller reasonable time to cure |
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When can a k be canceled or modified w/out the consent of that 3rd party?
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A k can be modified or canceled without consent if the 3rd parties rights have not yet vested
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When does vesting of 3rd party bene vest?
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1. When 3rd party learns of k and assents to it
2. When 3rd party relies on the k 3. 3rd party sues under the k |
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What is the classic substitute for consideration?
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Promissory Estoppel
1. Promise 2. Reliance that is reasonable, detrimental, and foreseeable; 3. Enforcement necessary to avoid injustice |
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FOB: buyer place of business
Who bares loss? |
seller bares risk of loss until goods get to buyer
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FOB: seller place of business
Who bares loss? |
buyer bares risk of loss if good are damaged or destroyed
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FOB: point of destination
Who bares loss? |
seller gets risk of loss until it gets to destination then when buyer gets it he bares risk of loss
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Standard remedy for non breaching buyer under UCC?
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Difference between cover price and k
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True/False:
K's are not assignable or delegable? |
False.
Yes they are. unless for unique personal service k and long term requirement k |
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Can assignments be oral or in writing?
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Yes. either.
No consideration needed. |
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What is an accord?
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Accord: suspends performance of original agreement and
satisfaction is when new agreement is performed |
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Is an Expression of doubt as to one ability to perform enough for anticipatory to breach?
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No.
Need clear statement of intent not to perform |
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Failure to Perform:
What happens when breach is material or minor? |
Material → cancel the k
Non - Material → Only sue for damages |
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True or false:
Unique personal service k if you are sick or injured you are excused and ≠ liable for damages? |
Yes.
unless k provides otherwise |
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What is a condition precedent?
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an act or event, other than lapse of time, that must occur first before a party is under a duty to perform
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When are liquidated damage provisions allowed?
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1. Where damages are difficult to ascertain at the time of entering the k
2. Damages are reasonable forecast of compensatory damages |
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When there is merger (k merges into the deed)
Which controls: the k or the deed? |
Deed control liability.
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What doctrine applies where you would says its unfair to allow the SOF to bar a claim?
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Promissory estoppel:
it would be unfair for SOF to bar a claim where D's conduct induces a P to change his position in reliance of an oral argument. |
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A gratuitous assignment is revocable unless?
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the token chosen involving the rights to be assigned (i.e. a savings account passbook) is delivered.
Assignor loses both the right and power to revoke p.292 |
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What does a clause which prohibits assignments of the k be construed to bar?
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Bars only the delegation of the assignor's duties.
NOT the assignment of right to receive payment. p.290 |
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What is a novation?
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Substitutes a new party for an original party to the k.
Requires assent of all parties and completely releases the original party. |
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What's the remedy when seller does not deliver OR buyer properly rejects/revokes acceptance of tendered goods?
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Difference b/w contract price & either market price or the cost of buying replacement goods (cover)
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What are the requirements of the assignment of rights?
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1. the assignment does not substantially change the obligor's duty or risk.
2. present words of assignment and 3. notice to the obligor |
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What is warranty of merchantability?
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In every sale by a merchant who deals in goods of the kind sold there is an implied warranty that the goods are merchantable
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What is implied warrant of fitness?
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Arises when any seller has reason to know the particular purpose for which the goods are to be used.
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What does merchantable mean?
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must be fit for the ordinary purpose for which goods are used.
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What is the very first thing I write down when dealing with a k's question?
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DOES THE UCC APPLY!!!!!
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Under UCC-is contract modifications binding without consideration?
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Yes.
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