Barbri Summer 2013 K

Front 1

Offer

Back 1

Manifestation of a present intent to K as demonstrated by 1) A promise, undertaking or commitment not merely an invitation to begin mere preliminary negotiations but actual intent.
2) certainty and definiteness in the essential terms
3) Communication to an identified offeree

Front 2

Acceptance

Back 2

A manifestation of assent to the terms of an offer in the manner prescribed or authorized by the offerror

Front 3

Consideration

Back 3

A valid K requires consideration consisting of a bargained for exchange resulting in a legal detriment to one party and a legal benefit to the other party.

Front 4

What are goods

Back 4

all things movable at the time they are identified as th goods to be sold under the contract

Front 5

merchant

Back 5

one who regularly deals in goods of the kind sold or who otherwise by his profession holds hiself out as having special knowledge or skills as to the practices or goods involved

Front 6

Is an objective or subjective std use to determine whther a K was formed

Back 6

Mutual assent is evaluated under an objective std. The individual subject intent of a party to enter into a K is irrelevant.

Front 7

What terms are required for a land K

Back 7

Description of the land involved and the price

Front 8

How is an offer indirectly revoked

Back 8

The offeree receives 1) correct information 2) from a reliable source 3) of acts by the offerror that would indicate to a reasonable person that the offerror no longer wishes to make the offer.

Front 9

when is a revocation to an offer effective?

Back 9

In general when received, but if an offer is made by publication then the revocation is effective when published as well.

Front 10

When are offers irrevocable

Back 10

1) Merchants firm offer, 2) option K for consideration 3) detrimental reliance.- when the offeror could reasonably expect that the offeree would rely to her detriment on the offer, and the offeree does so rely- the offer will be held irrevocable as an option k for a reasonable length of time. 4) part performance for a true unilateral K - must be actual performance not just preparation. 5) part performance for a bilateral K where the manner off acceptance is not specificied.

Front 11

How is an offer terminated by an offeree

Back 11

1) Express Rejection 2) counteroffer 3) unreasonable lapse of time. 4) termination as a matter of law - death or insanity of either party, destructin of the proposed K's subject matter, supervening illegality.

Front 12

How is a bilateral K accepted

Back 12

Through a promise to perform or the beginning of performance

Front 13

How is an offer to buy goods for current or prompt shipment accepted

Back 13

By a promise to ship or by current or prompt shipment

Front 14

When is accommodation allowed

Back 14

When an offer is accepted by prompt shipment. Acceptance through a promise to ship does not permit accommodation.

Front 15

Can an offer by accepted if it is between merchants and there is a condition in the acceptance

Back 15

no - if an offer is accepted with an express condition that must be accepted it is not an acceptance. It is a counter offer and there must be an express assent to the new terms. It can't be accepted by performance.

Front 16

When is a past obligation or a subsequent promise to pay for that act enforceable

Back 16

1) When a technical defense such as a SOL prevents enforcement and a new promise is made in writing or there is partial performance. 2) if a past act benefitted the promissor and was performed by the promisee at the promisee's request or in response to an emergency, a subsequent promise to pa y for that act is enforceable

Front 17

What are the exceptions to the general rule that promising to fulfill preexisting legal duty is not sufficient consideration

Back 17

1) new or different consideration is promised 2) the promise is to ratify a voidable obligation 3) the preexisting duty is owed to a third party rather than to the promisor 4) there is an honest dispute as to the duty. 5) ther are unforeseen circumstances sufficient to discharge a duty.

Front 18

When is a forbearance to sue constitute consideration

Back 18

A promise to refrain from suing on a claim may constitute consideration if the claim is valid or the claimant in good faith believed the claim was valid.

Front 19

When is a promise illusory

Back 19

When only one party is bound to perform.

Front 20

What are the requirements for Promissory Estoppel

Back 20

1) the promissor should reasonably expect to induce action or forbearance
2) and such action or forbearance is in fact induced
3) justice requires a remedy.

Front 21

What are the potential defenses to K Formation based on absence of mutual assent

Back 21

1) Mutual Mistake - voidable by adversely affected party if
- mistake concerns basic assumption on which the K was made
- mistake has a material affect on the agreed upon exchange
- party seeking avoidance did not assume the risk of the mistake

Front 22

What is the impact on mutual mistake if the the adversely affected party assumed the risk that the assumption was mistaken

Back 22

If the adversely affected party bore the risk that the assumption was mistaken then mutual mistake is not a defense. Generally happens when one party is in a better position to know the risks than the other party - or when the parties were consciously aware of their ignorance

Front 23

Will a unilateral mistake prevent formation of a K

Back 23

Not unless the non mistaken party knew or had reason to know of the mistake.- then the K is voidable by the mistaken party.

Front 24

what is the impact of ambiguous language on a K

Back 24

1) if neither party is aware of the ambiguity - no K unless both parties intend the same meaning.
2) if both parties are aware of the ambiguity - no K unless both parties intended the same meaning.
3) one party aware of ambiguity - binding K based on what the ignorant party reasonably believed to be the meaning of the ambiguous words.

Front 25

What is fraud in the inducement

Back 25

When a party induces another to enter into a K by using fraudulent misrepresentation ( ie asserting information she knows is untrue) the K is voidable by the innocent party if she justifiably relied on the fraudulent misrepresentation.

Front 26

Does a fraudulent inducement have to be spoken

Back 26

No - it can be inferred from conduct.Concealing a fact, frustrating investigation of a fact, or falsely denying knowledge of a fact is the same as asserting the fact does not exist. Note; nondisclosure of a fact is not misrepresentation unless it is material and fraudulent ( false denial of knowledge of a material fact )

Front 27

What is the effect of nonfraudulent misrepresentation

Back 27

The k is voidable by the innocent party if the innocent party justifiably relied on the misrepresentation and the misrepresentation was material.

Front 28

Is reliance on a misrepresentation unjustified because it could have been discovered or revealed by the exercise of due care

Back 28

No - there is no requirement to exercise due care to uncover a misrepresentation in order for the reliance on the misrepresentation to be considered justified.

Front 29

Does an innocent party have to wait to be sued in order to assert a defense of misrepresentation

Back 29

no - the innocent party may take affirmative action to rescind the K and pursue all remedies for breach.

Front 30

Impossibility

Back 30

the occurrence of an unanticipated or extraordinary event make contractual duties impossible to perform where the nonoccurrence of the event was a basic assumption of the parties in making the K and neither party has expressly or impliedly assumed the risk of the event occurring.

Front 31

Impracticability

Back 31

Occurs when the party under a duty to perform has encountered extreme and unreasonable difficulties and expenses to their performance that was unforeseable and unanticipated at the time of formation

Front 32

What is the test for impossibility

Back 32

Is it impossible for anyone to do it.

Front 33

Merchants Fir OFfer

Back 33

An offer by a merchant to buy or sell goods in a signed writing that by its terms gives assurances that it will be held open is not revocable for lack of consideration for the time stated, or at least a reasonable time, not to exceed three months.

Front 34

Staatute of Frauds

Back 34

Under the statute of Frauds, certain agreements must be evidenced by a writing signed by the parties sought to be bound. Orgasm

Front 35

Discharge by Frustation

Back 35

Frustration of K exists if the purpose has become valueless because of some supervening event not the fault of the party seeking discharge. The event must be one that was not foreseeable by the parties .

Front 36

Quasi K

Back 36

Where a K fails

Front 37

What are the remedies when there has been substantial performance

Back 37

Step 3: Remedies
• If there was _substantial performance__ (like in Jacobs), then contractor/employee (breaching party) can sue for the:
• Option 1) Full price of the K minus the cost to cure the minor defects (expectation damages, this includes profits) ex. The contractor in Jacobs can sue the owner for the cost of the K less the cost of replacing the pipe O
• Option 2) If curing the minor defects would cause __economic waste_ (another term of art – use on final!!!), then the breaching party can sue for the price of the K minus the difference in value of the property as constructed (i.e. price of house w/ cohoes pipes) and the value of the property if the performance had been properly completed (price house is worth w/ redding pipe)

Front 38

Remedies for Anticipatory Repudiation

Back 38

Immediately sue
Wait to see if the other party does perform as promised (this does not constitute a waiver)
Demand written assurances that the other party is not going to breach (if you don’t get your assurances, then you can sue)
Rescission of the K - discharge of your duties

Front 39

Remedies when the seller has sent nonconforming goods

Back 39

o a) you can reject the whole
o b) accept the whole
o c) accept any commercial unit or units and reject the rest

Front 40

Waiver of Rejection by Failure to Particularize

Back 40

o Buyer must state a __particular reason__ for rejection
o Buyer has to justify rejection and tell seller what is wrong w/ goods after buyer has had reasonable time to inspect goods, otherwise _he waives his right to reject__

Front 41

Remedy for anticipatory repudiation

Back 41

• for a commercially reasonable time await performance by the repudiating party
• immediately resort to any remedy for breach ( 2-703 (buyers) or 2-711 -sellers ) and
• in either case suspend his own performance or proceed under 2-704 (right to finish goods or sell for scrap)

Front 42

CL Remedies

Back 42

Expectation
Reliance
Restitution

Front 43

Remedy for buyer when seller does not perform and buyer covers

Back 43

The buyer may recover from the seller as damages the difference between the cost of cover and the K price together with any incidental or consequential damages as herinafter defined ( 2-715)

Front 44

Buyers damages when no cover

Back 44

• subject to proof of market price, if the buyer chooses not to cover or can't do so - the measure of the damages for repudiation by the seller is the difference between the mkt price at the time when the buyer learned of the breach and the K price together with any incidental and consequential damages provided in this article

Front 45

BUyers damages for accepted gds

Back 45

whether the buyer accepts gds and notifies the seller of non-conformity, he may recover damages for the difference in value of the gds as warranted and the gds accepted