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65 Cards in this Set
- Front
- Back
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what is unilateral contract.
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offer that requires = performance as acceptance.
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what is bilateral contract.
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does not specify how to accept.
unless, rewards or prizes, contest= offer expressly require performance. |
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what is element for quasi contract.
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elements
1. PL has conferred a benefit to D and 2. Reasonably expected to be paid. and 3. realized unjust enrichment if PL is no compensated. Measure of Recovery Value of of benefit. ( k price is the ceiling) |
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when does the UCC apply?
when is there a mix deal, does the UCC still apply? |
UCC applies to sales of good and products.
UCC still applies when there is a mix deal, issue= what controls more = sale of good or service. |
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what is the rule for requirement contract.
can a requirement contract be increased |
UCC will control if the price is missing = legal k.
requirement k can be increased as long as it is in line with prior demand. Not reasonably disproportionate limitation increase. |
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what is the Gen. rule for advertisement.
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Advertisement = Not offer.
------exception----- a. if reward b. specifies quantity and expressly states who can accept. |
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what are the 4 termination of offers.
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1. lapse of time = time state or reasonable time.
2. death of a party prior to acceptance Gen. death/incapacity of either party after offer and b4 acceptance = termination of offer. --------exception------- irrevocable offers. 3. seller explicitly states revocation. 4. conduct revokes the offer. a. counteroffer = rejection (counter and bargaining = still k) b. conditional acceptance. ( a-b apply to all contracts) c. additional terms( sale goods and common law only) offer and acceptance must = mirror rule. |
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what makes a k open until set date.
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Option k
not revokable until the set date = Pl must put down money. **unless a merchant**= firm merchant offer. --must have promise to keep offer open ( limit UP TO 3 months) --must be signed written promise. --party making offer must be merchant. |
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if nothing else works what can pl rely on to get the contract in.
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Estoppel.
1. reasonable reliance 2. reasonable foreseeable and 3. detrimental to pl if not followed. |
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when does additional terms automatically come in.
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2-207
1. offer to sell or buy goods. 2. there is a k = additional terms part of k if. a. both parties merchant. b. additional terms not material and c. additional terms not rejected by offeror. |
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what are the methods of acceptances.
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1. offer can control how the person will accept the k.
2. if silence = a. verbal b. start performance. ----exception----- start performance not = acceptance on unilateral k only complete performance. |
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what is the acceptance and rejection rule
what is the exception. |
acceptance is ok when it is received or mailed.
rejection is ok when it is received. the mailbox rule does not apply to the options k. |
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when happens when the seller of goods sends the wrong goods
who can accept the new offers. |
1. acceptance and breach.
= acceptance. = breach 2. accomodations (explanations) exception = counter offer and no breach. = no k = no breach who can accept. a. person who knows about k b. person it was made. **offers can not be assigned.** |
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what is the rule about performing and not knowing if there is a reward.
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No, $ if you perform and did not know that theyre was a reward involved.
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what is the elements for consideration.
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1. iD the promise breaker
2. see if anything is bargained for. 3. see if enforcer has legal determent. ----past consideration = no consideration----- exception= expressly requested by promisor and expectation of payment by promisee. H ask A to save her dog knowing that A would expect payment. |
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what is the preexisting rule for contract.
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if there is already a k = preexisting then you need to perform.
= for new k = new consideration. -----------------------exception------------------- 1. k modification. = new consideration for existing k 2. unforeseen difficulty so severe as to excuse performance. 3. 3rd party promises to pay |
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what is the rule for UCC and new consideration.
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still and k and no need for new consideration.
all is needed is good faith. UCC no preexisting duty rule. |
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what is the rule for part payment for release I.E promise to forgive a balance of debt.
what if the debt is not yet due. |
1. if debt is due and undisputed = part payment is not consideration for release.
2. debt is not yet due = early payment or new agreement = new consideration. |
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what is the rule for promissory estoppel.
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element.
1. Promise 2. Reliance that is reasonable, detrimental and foreseeable. 3. enforcement necessary to avoid injustice. |
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what is needed for SOF
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1. performance.
2. writing signed by the person who is bringing the claim. |
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1. what will be the guideline of SOF
2. things that need to be in writing. |
1. suretyship.
----exception---- = main purpose = if the main purpose of the obligation was to benefit the guarantor= guarantee not w/n SOF. 2. jobs not being able to finish w/n 1yr = SOF -----exception---- if nothing is said about the time = no SOF. 3. TRANSFERS of Real Estate. 4. Sale of goods 500 or more. 5. LEASE of goods for 1,000 or more. 6. SOF defense = part performance=if for land. a. possession. and. b. improvement. and c. payment. |
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what is the rule for SOF and service k.
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1. Full performance by either party satisfies the SOF
2. Part performance does not satisfy SOF. |
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If can win on SOF
what is another theory that one can win on. |
QUasi and unjust enrichment.
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what is the rule for k modification.
what is the common law rule for k modification. what is k modification for the UCC. |
it is ok
SOF applies if it falls within the SOF> ------common law rule------- k provision that require all modification be in writing and not effective = not effective. -----UCC---------- K modification are effective unless waived. |
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what are the reasons for not enforcing a k
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1. unconsciousibility.
crt can not fathom enforcing the k. 2. duress. vulnerable guy bad guy threatening breach of existing k. 3. illegality = if subject matter is illegal = illegal 4. against public policy. 5. ambiguity = words having 2 meanings ( no meeting of the minds) 6. mistake of fact at the time of k. a. mistake in judgment/ not facts. thought cow for sale was barren./ not thought this diamond was a fake and sold it cheap. |
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what is the rule for resending a contract b/c of mistake.
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1. unilateral mistake = usually still a k ( benefit of the bargain.
----exception----- palpable mistake ( other party had reason to know of the mistake) 2. mutual = no k because no meeting of the minds. |
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what is the def. to these.
1. integration 2. partial integration. 3. complete integration. 4. merger clause. 5. parol evidence 6. reformation. |
1. written agreement = final k
2. partial integration = written and final but not complete. 3. complete integration= written and final and complete. 4. merger clause = k clause that said= this is the final 5. parol evid. = words of party = before integration. 6. reformation = equitable action to modify the written k to reflection actual agreement. |
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what is the Gen. Rule for parol evid. in terms of contradiction and change.
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cant use parol evidence to contradict terms.
use for limited purpose -----court can use the evid. to consider whether there was a mistake in the integration agreement in the writing/ or any purpose--- crt can admit other writings to explain the written deal in a k. |
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what are the two exceptions to adding to the written deal.
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1. writing agreement was only a partial integration.
2. that additional terms would ordinary be separate agreement. |
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what are the UCC gap fillers.
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1. Course of performance = same people= same k
2. Course of dealing= same people = same people but have dealt with each other before. 3. Custom and usage. = diff. people = but how they do it in the business. |
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what is the rule for UCC sales of good k
who takes the risk of loss. |
1. shipment k =
a. get good to common carrier and b. reasonable arrangement for delivery. and c. notifies the buyer. 2. destination k a. completion = goods arrive where the buyer is at. 3. F.O.B k a. free once on board. ---if FOB + city ( other city) = destination k. if doubt = shipment k. ---------------------------------------- risk of loss. 1. agreement controls . 2. breach= breaching party is liable for any uninsured loss even though breach is unrelated problem. 3. delivered by common carrier but not the seller= buyer. EI FOB> SHIPMENT 4. catch all --merchant-seller shift loss when buyer gets receipt. --non-merchant seller shift loss when tenders goods. |
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Hypo:
X leases big screen tv from Acme tv rental. Tv is destroyed in the flood, does X have to continue making the lease payment. X leases a car. While X selects the car she leased from aceme ford sale, B bank bought the card and leased it to x. The car is destroyed in flood. Does x have to continue making payment. |
NO= risk of loss is on lessor.
Yes= finance lease. Gen. Rule = risk of loss on Personal Prop. = lessor --unless-- finance lease. |
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what is the rule for
1. warranties of quality. 2. implied warranty of merchantability. 3 warranties on leases. |
1. express words = state of fact
or 2. use of sample model. merchantability = fit for ordinary purpose of that kind. must be sold by merchant. 3. can sue if the lease of goods but must continue paying if finance leas. |
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what kind of warranties can be disclaimed and how.
what is the result. |
implied merchantability and fitness warranties = can be waived.
1. express warranties can usually not be disclaimed. ----how to disclaimed--- a. Conspicuous language of disclaimer, mentioning merchantability. --limits how much they can get back for recovery-- b. " as is" " with all fauts" |
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what are the 6 concept of acceptance.
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1. Perfect tender rule.
(only applies to sales of good.) 2. rejection of the goods. if not meet perfect tender rule. a. retain and sue for damages. b. reject all or any commercial unit. and sue for damages c. cure " installment k and acceptance. if seller has reasonable grounds to believe it would be ok ( after delivery date) 3. installment k can ONLY reject the installment only if = substantially impairs the whole k. 4. acceptance= payment without opportunity to inspect is not acceptance. time lapse without complaint = acceptance. 5. Revocation of acceptance of the goods = a. nonconformity = substantially impairs value of the goods b. reliable on seller's assurance of satisfaction and. c. revocation within reasonable time after discovery of nonconformity. |
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what are the contracts of remedies.
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1. unique goods = must sell if there is a k.
2. for services = no specific performance = injunctive relief only. 3. reclamation= seller to get the goods back a. buyer must be insolvent at the time b. seller demands good within 10 days of receipt. c. buyer still has good at the time of demand. |
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what are the money damages (recovery)
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expectations damages.
a. $ performance without breach - performance with breach = expectation damages. |
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what is the rule for measurement of damages.
a. seller breaches, buyer keeps the goods b. seller breaches, seller has the goods. c. Buyer breaches, buyer keeps the goods. d. Buyer breaches, seller has the good. ------what is the exception---------- |
a. FMV if FMV at time delivered.
E.I 5k at time of k 6k at time of deliver = 1k recov. b. FMV at time of discovery of breach-k price. or cover Price. E.I k price 5k then learn of breach 7k = 2k recov. c. K price. d. K price--resale price and in provable profits. -----------Loss volume seller------------ loss volume seller can get provable loss profits. ***also*** INCIDENTAL = Cost in dealing with the breach. FORESEEABLE CONSEQUENCE (special damages) loss that natural flows from the initial breach. ---limited to Df had reason to know of special circumstances-- |
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what is the rule for liquidated damages.
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1. damages was diff. to forecast at the time of damages.
2. provision is reasonable forecast. |
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what is the common law and material breach rule.
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4 gen. and material breach rule.
1. damages can be recovered for any breach. 2. only for material breach by one guy excuse performance. 3. whether a breach in material is a fact question. 4. if there is substantial performance then the breach is not material. ---if the breach is not material = performance was not substantial--- |
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what is the divisible contract rule.
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there is a k law of divisible part even thought there has been a material breach of the entire k.
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what is the rule for perfect tender rule for divisible k
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dont use the divisible for the divisible k but use the perfect tender rule to order not divisible rule.
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what is the rule for non occurrence for an express condition.
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1. what is the condition.
language in k 2. how can you identify an express condition. strict language 3. how can an express condition be satisfied. usually strict compliance of a condition. 4. how can express condition be excused. if not = all other condition excused. or waiver/estoppel ---exception--- if the party protected hinder xpress condition = xpress condition excused = the k must be performed. |
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what is the rule for excused performance by other party's anticipatory repudiation.
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1. other party will not perform.
2. made prior to time and that performance was due. = immediate claim for damages breach unless claimant has already finished her performance = y = then sue on the k. -----exception------- anticipatory repudiation can be reversed or retracted so long as there has not been material change in position. ---performance can be delayed until adequate assurance has been made-- |
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what can party do if insecurity for performance.
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1. reasonable grounds for insecurity.
2. written demand for adequate assurance 3. commercially reasonable to stop performance. |
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what is the rule for recission of k
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can do it before the job is finished.
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what is accord and satisfaction.
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( substitute for performance)
already k and replacement for something else if the parties agree. --after new k then old one is excused. |
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what happens if the accord is not performed after the agreement was made.
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then the parties can sue on either the original k or the accord and satisfaction.
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what is the rule for modification agreement.
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excused of old agreement for new.
if breached can only sue on the new agreement and not the old one. |
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what is novation.
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agreement btwn original parties to relieve one of them of all liability for a new party to take on task and liability.
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what is the rule for excuse by reason of a later unforeseen event
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1. something happens after k formation or frustration but before completion of k performance
and 2. something happens was unforeseen and 3. makes performance impossible or impractical or frustrates the purpose |
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what is the rule for death and k
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GEN> rule = death does not excuse k obligation.
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what is the rule for Special person death and non performance.
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1. excused if death = impossibility.
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what happens if
1. new law makes performance illegal 2. new law makes purpose k illegal. |
1. excused by impossible
2. excused by frustration of purpose. |
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vocab.
what are the parties named in the 3rd party beneficiary. |
1. promisor = person making the promise.
2. promisee = person getting the promise 3. intended/incidental= the person getting the benefit. 4. creditor/donee = usually the beneficiary |
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what is the rule for modification to cancel or modify the 3rd party k.
what is the rule for = recovery for 1. beneficiary promisor 2. promisee promisor 3. beneficiary Promisee 4. what is the limited exception. -----what are the defenses for promisor---- |
usually cant do it if the k has been vested without the approval of the 3rd party beneficiary.
1. Beneficiary can recover from Promisor 2. Promisee can recover from promisor 3. Gen. Beneficiary can not recover from promisee 4. Creditor Beneficiary can recover from Promisee BUT ONLY on preexisting debt. -----defense of promisor---- the promisor can assert any df he would have had if sued by promisee. |
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what is the rule for assignment.
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1. offers are not assignable
2. can assign a contract. 3. service k can be assigned to a 3rd party. |
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what is the vocabulary for assignment.
1. assignor 2. assignee 3. obligor. |
1. assignor = party to the k who transfer the k
2. assignee = the person who get the k 3. obligor = other party to the contract. |
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what is the limitation on assignment.
what is common law. Gen. rule for over assignment. |
in the k there is clause stating no assignment.
prohibition = takes away the right to assign but not the power. Assignor can still assign and if assignee does not know about it. = collect from obligor & batman assignor will be liable assignee can still enforce payment if did not know. Invalidation= language takes away both the right of assignor and the power to assign. ----------Common law---------- 1. bars assignment that substantially changes the duties of obligor a. assignment of right to payment = never substantial change. b. any assignment to right other than payment = substantial change. Gratuitous assignment can be revoked but all other ok. |
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what is the rule for rights of assignment.
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1. assignee can collect regardless of who performs.
2. assignor for consideration cannot recover from obligor eI = after assigning k with gothom to robin for 10 and doing all the work himself, can batman collect from gothom. 3. Obligor has the same defenses against the assignee as it would have against assignor. 4. payment by obligor to assignor ok until assignee know about the assignment. ei. same thing in reverse ok if = obligor didnt know of assignee. |
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what is the rule for assignment for value.
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1. the right to assignment for value (can do it w/o value. )
but a. rights assigned actually exists and b. the right assigned is not subjected to any then existing defenses by the obligor and c. the assignor will do nothing after the assignment to impair the value of the assignment. **assignor will not warrant what the obligor will do after the assignment** |
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what is the rule for multiple assignments
what is the rule for assignment for consideration wins. |
that last one wins.
the assignment for consideration wins. |
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what is the 4 horsemen rule.
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assignment: subsequent will take priority if
1. doesnt know of earlier assignment. 2. first to get/ a. payment b. judgment c. novation or d. indicia ownership |
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what is the limitation for deligation rule.
who is liable. |
k will not allow it.
the assignment is for personal service and calls for very special skills. ----liability---- 1. delegating party is always liable. 2. delegatee is liable only if she receives consideration from delegating party. |
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what are the 11 issues for k
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1. SOF
2. Parol evid. 3. Money damages 4. Revocation of offer 5. Rejection of goods/Revocation of acceptance of goods. 6. Delegation/novation. 7. 3rd party beneficiary 8. Rejection of offer 9. Assignment 10. warranty 11. Risk of loss. |
