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106 Cards in this Set
- Front
- Back
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What is a Statute of Fraud
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Certain types of contracts are enforceable if evidenced by writing and signed by the person sough to be bound.
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Purpose of Statute of Fraud
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To keep people from coming to court saying "we didnt have a contract" when they really did
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Interchangable Variables
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Valid but unenforceable
Voidable |
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6 Classes of Contracts
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(1) Contracts evidencing interest in real property
(2) Contracts which by terms cannot be performed in one year (3) Contracts as an answer for debt of another (4) Promise of executor to pay estate debts (5) Promises arised by promise of marraige (6) UCC K over 500$ |
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3 Exceptions to Contracts
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Partial Payment
Partial Performance Judicial Admission |
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Parole Evidence Rule
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Rule that says once a contract is admitted in court one may not say "yes, but that is not what we meant"
Doesnt Apply to ambiguous K Fraud and Duress dont apply |
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Rules of Contractual Construction
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Handwritten over typewritten over preprinted
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Construction means
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interpretation means construe and when you construe you arrive at a contract
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Hierarchy of Implied Terms
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Course of Performance
Course of Dealing Custom and Usage of Trade (UCC) |
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3 Classes of 3rd party beneficiaries
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Creditor
Donee Incidental |
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Creditor 3PB
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Has more rights - enforceable rights
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Donee 3PB
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Has fewer rights - enforceable rights - recipient of a gift
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Incidental 3PB
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No rights, no enforceable rights, unintended beneficiary
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Is an Incidental a 3PB?
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No
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If B owes C 300$ who has the most rights and who can sue?
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C can sue A and B. C has enforceable rights to A
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Two types of Assignment
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Assignment of Right
Assignment of A contract |
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Assignment of Rights
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Assignment of right to receive money
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Assignment of a Contract
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Includes rights and duties
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Who are A B and C in Assignment?
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A is promisor
B is Assignor C is Assignee |
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In Assignment B remain _____ on the K
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Liable
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Assignee takes Contract Subject to..
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Claims, Defenses, Setoffs
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Restrictions on Assignment of Rights
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Personal Service
Credit Transaction Burden of Performance |
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Personal Service
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Cannot assign contract that involves services for personal duties
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Credit Transaction
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Cannot Assign the right to receive credit or assign a loan.
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Burden of Performance
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Material Increase in Burden
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Warranties of Assignor
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Assignor has the right to assign it and there is no claim good against it
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What happens when the contract is broken?
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Breach of contract. Discharged
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Most contracts are discharged by _____
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Performance
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Conditions of Discharge of a K
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Precedent
Subsequent Concurrent |
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Precedent
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Condition that comes before
Event that must take place before you have an obligation to perform |
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Subsequent
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Duty to perform - but if an event takes place that would trigger an automatic default then K=Broken
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Concurrent
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Not as important
requires simultaneous performance and is assumed in sales transaction |
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Time is of the Essence =
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Time is a material term
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Tender =
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To offer when you have a contractual obligation
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Tender of Payment
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Does not discharge obligation
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Tender of Performance
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Does Discharge obligation
(mowing lawns) |
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Curative Tender
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Fixing a problem of performance
-must be done by giving a day or reasonable amount of time if time is not of the essence |
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Covenants are
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Promises
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A Material Breach
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is a major break
-frees the non breaching party |
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Substantial Performance Doctrine
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If you have substantially performed your contract and your defect in your tender of performance was not intentional or major then you will be allowed contract price less setoffs
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Discharge by Agreement
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Mutual Cancellation
Mutual Agreement Mutual Recision Substitution Novation Accord and Satisfaction Release Waiver |
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Mutual Cancellation
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Agreement says when K ends
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Mutual Recision
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Involes the return of something
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Substitution
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Party changes but contract does not
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Novation
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Party stays the same, contract changes
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Accord and Satisfaction
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honest agreement resolved by payment of compensation
-agreement of performance of agreements |
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Release
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Releasing a party from their K
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Discharge by Impossibility
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Common Law, and Objective
(1) Doctrine of Impossibility (2) Doctrine of Frustration (3) Doctrine of Commercial Impracticability |
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Doctrine of Impossibility
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Temporary Impossible, suspends unless time is of the essence
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Doctrine of Frustration of purpose
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Show physical frustration. If frustrated by something out of the control of either party's control then each party can be let out of the agreement
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Doctrine of Commercial Impracticability
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-UCC
-an event that takes place outside reasonable expectations -Ex: Rain in spokane - beachboys -Involves temporary impossibility |
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Discharge by Operation of Law
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Alteration
Destruction Bankruptcy Statutes of Limitations Contractual Limitations |
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Alteration
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Material Change
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Destruction
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Written K with intent to discharge
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Bankruptcy
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Order of federal court releasing you from certain classes of debt
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Statutes and Limitation
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Public Policy
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Contractual Limitations
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time limits in which lawsuits have to be
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Bankruptcy Discharges _____ ____
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Contractual Obligation
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Impossibility Objective
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The Thing cannot be done as opposed to, I cannot do it.
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Law =
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Damages
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Equity =
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Remedies
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Damages Give
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non breaching parties benefit of the bargain
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Remedies give
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restitution - returns party to status quo ante
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Damages =
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Money
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Anticipatory Breach
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-you can breach a contract before it begins by either oral/written/conduct
If adequate assurance of performance are not given you can breach a K |
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Equitable Remedies
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Recision
Restitution Reformation Injunction Specific Performance |
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Recision
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Go back to where parties were before the K
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Restitution
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Receive compensation
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reformation
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power of judge to change a K
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Injunction
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order of court to stop doing what you're going
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Specific Performance
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rare; used in upsidedown housing contacts
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Classes of Damages
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Compensatory
Consequential Nominal Punative Liquidated |
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Compensatory Damage
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base level of damages - compensation
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Consequential Damage
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duty to cover (mitigate) flow as natural, probably, forseeable
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Nominal
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Damages in name only - attorney fees
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Punative Damages
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treble - triple
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Liquidated Damages
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Preagreed upon sum - include in body of K
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Economic Interest Covered by Damages
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Property, Economic, Personal Injury
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Property Classes
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Personal, Fixture, Real Property
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Personal Property
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Tangible, moveable stuff
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Fixture - Property
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Attached to lang but can be severed
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Real Property
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permanent on land
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Elements of a Gift
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Donative Intent
Delivery |
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Donative Intent
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Intent to give
unconditional a present intent to give, not future |
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Delivery of a Gift
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Actual and Constructive
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Types of Gifts
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Inter Vivos and in Causa Mortis
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Intervivos
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between the living -
Normal give - real time |
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In Causa Mortis
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In respect to death - a gift you give away in thought or fear of death
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Types of Lost Property
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Lost
Misplaced Abandoned Treasure Trove |
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Lost
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Likely to NOT return to that spot. Person who finds it has possession of it
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Misplaced
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Likely to come back to that spot - finder has the right to posession
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Abandoned
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Abandoned if it has no value - finders keepers
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Treasure Trove
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Stuff buried on property. no intention to be sold with property
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Escheat
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process by which certain inclaimed liquid assets that are not claimed with in a reasonable period of time goes to the state
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Tenancy
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Different ways to own property in common
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Tenancy in Common
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undivided interest in property. Each party has unlimited use of it. Does NOT use right of survivorship
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Joint Tenancy w/ Right of Survivorship
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If two people are married and one dies under this their rights are terminated and living spouse gets possession
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Community Property
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Statutory way of dealing with marital estate
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common Law
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Tenancy by entirety - how you hold property in marraige
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Bailment
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when one party has control of property owned by someone else
contractual in nature |
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Owner =
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bailor - placed goods with another
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Other Party
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Bailee - takes care of someone elses posession
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3 Classifications of Bailment
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Reciprocal
Bailment for Compensation Gratuitous Bailment |
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Bailments for Mutual Benefit
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one party takes someones property into his or her custody in exchange for money
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Gratuitous bailments
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transfer of possession and bailment property without compensation
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constructive Bailment
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imposed by law - the bailee must preserve property and redeliver to owner
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