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251 Cards in this Set
- Front
- Back
is a k binding without consideration?
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no
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T or F
a k does not have consideration to be binding |
false
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what is consideration in a k mean?
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is what each party to a contract gives up to the other in making their agreement
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NAME
this refers to when a promisor demands and recieves as the price of the promise |
cosnideration in k
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give an ex of the elment of consideration in a k?
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in a unitlateral k-
you climb the flag pole i give 10 bugs Ex) doing the required act |
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does the amount promised in the k matter?
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no
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what consitutes considertion in a k? what are the requirements? what is ok?
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(1)typically a payment of money (2)a binding promise (must impose a libaility or create a duty) (3)forebearnce
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NAME
this is is what each party to a contract gives up to the other in making their agreement |
element of consideration in k
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what is forbearance?
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is the refraiing from doing an act
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NAME
this refers to refraining from doing an act |
forbearance
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Does forebearnce consitute consideration?
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yes can be included
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what does NOT constitute consideration---these items make the contract VOID
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(1)illsuary promise (2) a promise to perform an existing obligation (3)past consideration- if something has already been given or performed (4)gifts (5)
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what is a primisory estoppel
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when court are trying to evaoid an unjust result.....general rule-promise is binding if the promisor should be resasonable foresee that he promissee will be inducted to rely on it and the promisse will sustain substantial loss if the promissee is not kept
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NAME when court are trying to evaoid an unjust result.....general rule-promise is binding if the promisor should be resasonable foresee that he promissee will be inducted to rely on it and the promisse will sustain substantial loss if the promissee is not kept
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primisory estoppel
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what is required for it to be a prissory estoppel
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REQUIRED-
(1)resonable forseeable (2) detrimental reliance person relies on the promise made by the promisor--causes sustained substanial losses |
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what are some UNIQUE situations were consideration is NOT requiried? (4)
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(1)charitable subsriptions (2)UCC exceptiosn
a)merchant's written firm offer stated to be irrevocable b)written discharge of a claim for an alleged branch of commerical k c)an agreement to modify a k for the sale of goods (3)sealed and written instruments- (considered subsitute) (4)promisory estoppel |
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T or F
seal and written insturments are considered to a be subsitute for consideration |
true
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
kerry promised to give beth her skies as a gift beth offers to pay kerry 100 for used sky. kerry accepts |
no, not binding
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
forbearnce |
yes, legaly binding contract
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
contains an illusary promise |
no not legally binding
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
Mountain Coal Co promised to sell Southwest Power Co all the coal it may order for 48 per ton for the year 2006. and mist power agrees |
no...illusary promise
Southwest power Co did not promise to buy its coal from them |
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
a promise to perform an existing obligation |
no not binding
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
past consideration |
no not binding
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
Sherry saves Sam's life. and sam makes a promise to pay her 10,000 for the rest of his life |
no not binding (already happened)
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
charitable substrictions such as building a church |
yes, no consideration needed
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
merchant's written firm offer stating that it is irrevocable |
yes, no consideratio needed
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T or F
courts determine the adequacy (amount) of the consideration |
false
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
contracts based on moral obligation such as reg buying groceries for a poor elderly coouple |
no not binding
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
I will pay Bob 50 dollars to paint my fence unless I do not like the color he picked to paint the fence. |
no illsuary promise
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
2. Tom was court ordered to do 50 hours of community service for the human society for his traffic ticket. Tom applied and won a scholarship fro m the human society. The director of the local human society promised to give Tom a 5,000 dollar scholarship for school if he completed 50 hours of community service. |
no, existing obligation
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
3. On April 11, Bob’s cleaning service cleaned Sue’s house for 25 dollars. After the job was completed, Sue promised to pay Bob 50 dollars for cleaning her house in the future because he did such as good job. Bob claims that Sue owes her an extra 25 dollars for cleaning her house on April 11. |
no, past consideration
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
In March, Sue signed a contract to rent a condo from the Island Apartments. The manager of the Island Apartments agreed to have the apartment ready by May 1. However on May 1, the apartment manager told her she could not move in until August 1 because the apartment was not ready and was being refurbished. Unfortunately, Sue was relying on the apartment and had no where else to stay but a hotel for until August 1. |
yes ex of promisory estoppel---no consideration is needed
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STATE WHETHER THE CONTRACT IS BINDING OR NOT
5. American Used Cars sold May, a poor Hispanic women a used car for 2,000 dollars. However, May, could only speak and could not read in English. The contract May signed was in English. In the contract, the American Used Cars stated that May would pay 2,000 dollars for the car upfront and 2,000 dollars over a one year period. American Used Cars failed to disclose this to May. Furthermore, the car was only valued at 2,000 dollars. |
no indicates an unconscionable contract.
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generally an inlegal contract is (1)
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void
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give some exmaples of illegal contracts?
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k to
commit assult, steal, burn a house, kill, slander, and etc |
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what are some exceptions to when an illegal k is void?
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(1)protection of innocent party
ex)law is designed to protect innocent party, that party may seek relief (2)unequal guilt of the parties / |
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when there is unequal guilt of parties, who gets relief?
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person with less guilt
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what does it mean that the k is void if illegal?
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means that the contracti not binding and parties are NOT entitled to relief
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when might a party be able to seek reliever from an ilelgal contract?
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(1)protection of innocenet person. (2)unequal guilt of the parties
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NAME WHETHER CONTRACT IS BINDING OR NOT
a law states that co X cannot issue any securities. Co X issues securities to Mary. Mary buys them. Can Mary recover? |
yes, mary can recover
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A k was lawful. however, one of parties intends to male unlawful use of the contract, is the contract valid?
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yes, a k that is lawful, is not made unlawful by the fact that one parties intends to muse unlawful
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describe the rule
about legal k which having an ilegal purpose |
a k that is lawful is not made unlawful by the fact that one party has illegal intends ot mise use the contract
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a k that is lawful is not made unlawful by the fact that one party has illegal intends ot mise use the contract
does this rule still hold ture of the other party was aware of the future ilegability? |
yes, still valid
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the k is partial ilegality.
is the k still valid? |
if a k has several parts, (some of which are illegal), a court may elect to seperate the ilegal and enforce the legal parts
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Do courts noramlly consider whether a k was fair or unfair?
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NO....only under certain circumstances
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T or F
A court never considors wheter a k was fair |
false- only when k are unduly harsh or oppressive to one parties
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when does the court consider whether a k was fair or not?
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when the k are harsh or opressive
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what is a unconscionable k?
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a k that gives to much ADVANTAGE to one party
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NAME
this is a k at that gives to much advantage to one party |
unconsciounable k
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give an ex of a unconscionable k?
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a k charging 129% interest and preying on poor and uneducated people
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NAME TYPE OF K
a k charging 129% interest and preying on poor and uneducated people |
unconscionable k
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how does the court remidy for the unconscionable k? (3)
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(1)avoid k entirely (2)avoid the unconscionable result (3)rewrite the language of the k to make it fair
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who deceides whether a k is unconscionable?
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the court
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every k that a (1)clause
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good faith
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what does it mean that every k has a good faith clause?
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neither party will do anything harm/ineffect to destory the other party member
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k that was made that harms the public welfare
is the k valid or void? |
void
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k obstructing the legal process
is the k valid or void? |
void
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k obstructing the duties of public officals
is the k valid or void? |
void
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k discriminating against minorities
is the k valid or void? |
void
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what is general rule involving k and public policy?
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k is void if may harm public welfare
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what is the general rule involving unconscionable k's?
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court decidies
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T or F
the fact that something turned out to be a bad deal later. the court will change the k |
false- to bad
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what is the general rule for k's and regulation of business k?
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local, state, and nat laws regulate a wide variety of business acitvities and pracitcies.................
statute that says a particular type of k must follow the statury model or must contain specified provisions. |
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what is the general rule for illegal k?
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an illegal k is void
EXCEPTIONS: (1)protection of innoncent party (2)unequal guilt of the parties (equiatable remedy) |
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what is the general rule for k that partial illegal?
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if a k has several parts, (some of which), a court may elect to seperate the illegal and enforce the legal
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T or F
a k does not need have consideration to be binding |
false- except for
charitable subsritpions, UCC exceptions, and primisory estoppel |
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what do the courts do when the buisness k call for remedies?
what is the general rule |
the law, themselves, often call for penalty, and so therefore, the courts follow what the statues state amd do NOT void the k
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if the court finds that the business k needs to be remedied?
is the k void? |
no...go by what statue says and give penalty
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give some exs of how statute regulates business ks?
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(1)statues which require licensing
k is void if person does not have lecnese (2)fradulent sales statues require inspection of certain goods before sold. other require labeling......transactions in violation are void (3)k in restraint of trade a k that is unreasonable restrains trade is illegal and void (4)agreements that are not complete |
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what is the general rule for statues requiring licensing
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if an unlicensed person were practicing law, the person could NOT enforce the k, he/she entered into would be void
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Tom does not have a liscence to practice law. However, he has entered into several k as a lawyer.
is the k valid or void? |
NO cannot enforce the k VOID
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what is the general rule for statues regarding business k and fraudlent sales?
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statues require some goods be insecpted and have labels.
if break law, k is VOID |
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tom purchased a car but the car was not inspected according to state laws
is k void? |
VOID
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k that unreasonbly restrains trade by creating a monopoly
is k void or valid? |
VOID
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what is usury mean?
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is when money is loaned at greater rate of interest than is allowed by law
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NAME
this means that moeny is loaned at greater rate of interest than is allowed by law |
unsory
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what is an unsurious K?
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k in which interest is higher than what is allowed by law
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NAME TYPE OF K
k in which the interest is higher than what is allowed by law |
unsurious k
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what are k's that have a restrictive covenant? what does this mean?
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has agreement not to compete
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NAME
this refers to a aggreement in a k not to compete |
restrictive covenants
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when is a restrictive covenant legal ok in a k( valid)? give ex)s of when
what are the requirements/rules for this? |
(1)sale of business-
when business is sold, the seller shall not go into the same business within a certain time period or in the same geographic area only valid when to protect party not create monopoly (2)employee contract- clause to prevent competition by former employee are held valid when resonable and necessary to protect the interest of the former employee REQUIREMENTS must (1)convenant is protecting a "legtitamate business interest (2)covenant is "reseaonble"as to the time and geographic area (3)where upholding the aggreement would not harm the public |
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T or F
a restrictive covenants in k are awlays void |
FALSE but unless
covenant is protect "legitmate business interest, (2)covenant is "resonable" in time/geogrpahic area (3)where upholding the covenant does not harm public |
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a noncompete covenant executed by dr. samud keel that prohibits his "estbalishing a competing cardiovascular surgury practice within a 75 mile radius of labany, GA" for a period of two years to protect the corporation
s business interests is the k void or valid? |
valid
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is the k valid or void?
illinois manufactor acor's noncompetition covene,s which had a restricted area "of the USA and canada" precluding competition by a former employee for a one-year period |
void- scope of geogrpahnic area is not resonable
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what is general rule by oral ks?
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oral k's are valid.....but some ks must be in writing
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for k's that require writing,
what are the requirements of hte k? (4) |
(1)id the parties (2)id the subject matter (3)refer to consideration (4)signed by party whom enforcement is sought
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Does a check count as signature for a k?
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no
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T or F
a check can be used to count as a signature on a k |
false
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do memo or notes signed count as a vaild k w singature?
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yes
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what ks MUST be in writing? (7)
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(1)k's incapable of perofrmance w.in one year (2)an agreement to sell interest in a real property (3)promise to answer the debt of anthoer (4)if the personal representiatvie of an estate promises to pay the decedent's debts with the represnentative's own money (5) sale of goods over 500 (6)promise in made in consideration of marraige (7)examples SPEACIL to FL
-health care gurantees -newspaper subscriptions -home soliciation sales -home improvement k |
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if k's that are longer than 1 year to be perormed when is the start date?
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the date that contract signed/becomes legally binding
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T or F
for written k longer longer then one year. the start date starts with the day the performacne starts |
false
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what is suretyship?
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promise to answer to the debt of another
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what are some exceptions to the sale of goods over 500. (3)
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(1)specially manufactured goods (once seller starts to manufacture it (2)a written confirmation exchange btwn merchants, if the merchant has reason to kow of its contents (3)judcial admission of k- a pleading or depostion
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what kind of promises made in consderiation need to be in writing?
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(1)pre-nuptial agreements (2)if person promises to pay a sum of $ or to give property to anotehr in consideratio nof marrige
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what are some examples of speacil fl that require ks to be in writing ONLY IN FL? (4)
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(1)health care guarnatees (2)newspaper subscriptions (3)home solcitions sales (4)home improvement k
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is there some judicial relief to k that are suposed to be in writing? (2)
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some relief may be available such as
(1)where buyer has taken possession of land and made substantial, valuable improvements (2)detrimetnal relieance |
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T or F
courts noramlly step in with equitable resolution for k that have to be writing? |
false- relucentant
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when might court step in with equiatable resolution regarding k that have to be writing
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(1)bc of relliance on the promise, or unconscionable injury sustained (2)promisor would be unjustly enriched if oral promise was not enforced
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what is the parole evidence rule?
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exclude words spoken before or at the time of the k was made
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NAME
this rule excludes words spoken before or at the time of k was made |
parole evidence rule
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what is the purpose of the parole evidence rule? (1)
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prevent a party from avoiding liabiltiy on a written k by providing evidence that the writting doesnt mean what it says (2)promotes k's as being the full and final expression of the parties agreement
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NAME
the purpsoe of this is to prevent a party from avoiding liabiltiy on a written k by providing evidence that the writting doesnt mean what it says (2)promotes k's as being the full and final expression of the parties agreement |
parole evidence rule
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NAME
the primary purpose of this is to give stabiltiy to k |
parole evidence rule
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overall, what is the primary purpose of hte parole evidence rule?
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give stabiltiy to k
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T or F
in the past, the parol evidence rule was construed very strictly, today, more liberalized in most jursidictions |
true
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what are some exceptions to the parole evidence rule ?(6)
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(1)when k is incomplete (2)when k is ambigous (3)to prove fraud, accident, or mistake (4)to showcase the existance of a k (5)modifcation of k (6)to prove illegality
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what happens when the k is silent on particular point or contains contradictory terms or ambiguous?
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becomes a question of fact for a court to deciede
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what happens when the k is silent on particular point or contains contradictory terms or ambiguous?
WHAT ARE THE NINE ways that court handles this problem (9) |
(1)try to understand the intent of the parties (2)look to see if any other doc were incorporated by reference (3)look to see if there were any handwritten or typewritten provisions (4)courts will often imply a term in order to give the k construction or meaning that is reasonable
(5) court will imply a covenant of good faith and fair dealings (6) examine conductt btwn the parties (7) examine the custam usage in the trade or industry try to interpret the k in order to avoid hardship (8)any ambiguity interpreted stricly agaisnt hte party who drafted it |
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in k, how are words interpted?
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according to their ordinary meaning
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what is the only time that the court will NOT imply a term in order to give the k construction or meaning that is reasonble
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if the slience was intentional
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what happens if the terms are unabmbigious?
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courts follow the terms of the k even if they benefit the party who drafted the k
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T or F
in most cases a k, only the parties members benefit from a k |
true
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can third parties benefit from ks?
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yes
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what is def of a third party beneficiary?
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when a k is intended to benefit someone
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Give ex of a third party beneficiary ?
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life insurance policy
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NAME
this when a k is intendd to benefit someone |
third party beneficiary
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for life insurance, if person is unaware they are a third party beneficiary, can they later seek to enforce the k?
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yes
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can the cancel the k without permission from third party beneficary?
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yes, if k has an express privision allowing change without consent
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what are the special characterstics of a incidental beneficiary?
what is it? |
(1)not a party to the k(2)cannot sue on a k
third party NOT party member trying to use...cannot |
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T or F
incidental beneficiaries can sue to enforce k |
false
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what is an assignment?
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transfer or rights/obligations of k
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NAME
this is transfer of rights/obligations in ak |
assignment
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is an assignment a k?
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no transfer to interest
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T or F
assignment is considered a k |
false-transfer of interest
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give ex of a common assignment?
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transfer of student loans
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who is the assignor?
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the party making the assignment
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NAME
this is the party making the assignmetn |
assignor
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who is the assignee?
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party whom the assigment is made
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NAME
party whom the assignmetn is made |
assignee
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what is the differ btwn the assignor and the assignee?
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(1)assignor= party making the assigment (2)assignee- party to whom the assignment is made
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the assignor is also called the (1)
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delegator
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the delegator is also called the (1)
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assignor
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the assignee is also called the (1)
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delegatee
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illustrate how an assigment takes place
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obligor and assignor enter into k, and then b assigns the contract to the assignee
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Can the assignment be in any form?
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yes
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T or F
the assignmetn can only be in one form |
false
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the assignment may be in a form. however, it must (2)
what are the requirements? |
(1)must adequately describe the right assigned (2)must the words of present transfers...i promise to
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Can assignments be oral?
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yes
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Can you give a partial assignment?
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yes
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Is consideration required for assignment?
|
no
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T or F
for assignment to be valid, it must be in writting and require consideration |
false- does not need consideration and can be oral
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when can a k NOT be assigned?
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all ks except for (1)when the k prohibits the assignment (2)if assignment is prohibited by law (3)if the assignment substantially increases the burden of the performance (4)if assignment involves performance of a personal service (lawer assigning another case to a lawyer (5)if the goods to be furnished must be satisfacory to the personal judgement of the buyer *(6)credit transcations
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what are the results of an assignment?
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assignee stands in the shoes othe assignor
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what is the privity of k?
can they sue each other? |
yes, still bound by obligations
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what is novation?
|
is the substitution of a new party for the original party to the k.
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NAME
this refesr to the is the substitution of a new party for the original party to the k. |
novation
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how is a k d/c? (3)
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(1)d/c by performance (2)d/c by action of parties (3)d/c by external causes
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what is the typical way that k is d/c?
|
by performance
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T or F
k is typically d/c by action of parties |
false-performance
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what is a k d/c by performance?
|
d/c bc each party does what the k requires of them in the time period specified
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NAME
for this d/c, each party does what the k requires of them in the time period specified |
d/c by performance
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what is tendor?
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offer to perform
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NAME
this is offer to perform |
tendor
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what does tender of payment?
|
offer to pay the exact amount due when it is due
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NAME
this is offer to pay the exact amount due when its due |
tender of payment
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what are the (2)parts to a d/c by performance?
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(1)nature of performance- (tendor or tender of payment ) (2)time of performance-
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NAME
this performance may be doing of act or making a payment |
nature of performance
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NAME
this is the date and time should be specfiied in the k. |
time of performance
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what if k is silent as the time of performance?
|
ab obligation to perform w. a reasonable time will be implied
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what does it mean that when the k species that "time is the essence"
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this means that the timing is very important
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NAME
this in a k means that time is very important |
k specifies
"time is the essence" |
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what happen if one party thinks performance is unsatifactory?
|
the law does not require performance to be perfect. courts say that the parties must "substantially perform according the terms of the k
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Do the courts imply substantial performance when there are unfinished condition precedents?
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NO
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T or F
every courts has it owns definition of substantial performance |
true
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ex)im not required to sell your bike until i purchase a car.
will the courts imply substnatial performance |
no bc incomplete
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what does the court normally rule about substantial performance, when personal taste is important element?
|
courts generally hold that the performance is not sufficient unless promissee actually satisfied
|
|
ex) paint a portrait to a customers satisfactions
what would the court generally rule about substanital performance? |
the performance is NOT sufficient unless the promisee is actually satisfied
|
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may either or both parties deciede to d/c k
d/c by unilateral action what is the general rule (2) |
general rule is NO
EXCEPT (1)if k says it is ok (2)consumer protection law says it ok |
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what are the exceptions to when either or both parties can decide to d/c by unilateral action. (2)
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(1)if k says it ok (2)if a consumer protection law says it ok ex)can refund w.in three days
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what does the FTC regulation about dc by unilateral action?
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FTC regulation gives a buyer 3 days to which to cancel a home solicited sale of goods or services if greater then 25,000
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FTC regulation gives a buyer (1)to which to cancel a home solicited sale of goods and services if greater than (2)
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(1)3 days (2)25,000
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may both parties d/c a k
for d/c by agreement of both parties what is the general rule? what are the ways they can do this? (3) |
(1)by agreement in the orginal k-
(2)by mutual cancellation of both parties (3)novation |
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when d/c by agreement of both parties- by agreement w/in the original k?
when does the k terminate? |
30 days
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if the k is d/c by agreement of both parties
by mutual cancellation is subject to (1) |
statue of frauds
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mutual cancellation is also called (1)
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mutual rescission
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(1)is also called muutal rescission
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mutual cancellation
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what is novation?
|
is both parties deiede to substitute a new k in which the new party receiving benefits and assumes duties under the old k
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|
NAME
this is when both parties deciede to is substitute a new k in which the new party receiving benefits and assumes duties under the old k |
novation
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Does the novation need to be subject to consideration?
|
yes
|
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T or F
a novation does not need to be supported by consideration |
fasle
|
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what happens if circumstances beyond the control of contracting parties occur?
|
will d/c by external clause
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when we say that "circumstances are beyond the control of contracting parties" does this refer to lack of funds to pay debt
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NO
ex) sale of rare print, burns in a fire |
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T or F
a bad bargain generally d/c k |
false
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what is d/c by "impossibility" mean?
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k impossible to perform bc some event has occurred after the k is made
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with the k is d/c by of impossiblity
which party assumes respobility, normal? |
generally the seller bears the responsibility
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if a k calls for payment of money, is the money still due after you die?
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yes..if personal representative can carry out terms must do
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what happens if the cost of performance rises so suddenly and so greatly that performance of a k will result in a substantial loss?
what is the general rule |
SOME courts will d/c k bc of
"commerical imparticability) UNLESS k indicates a contrary intent |
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when will a court not d/c k bc of commerical impracticability?
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k indicates a contrary intent
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what happens if a change in circumstances, the performance of the k may have no value to the party entilted to recieve the k?
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some courts may d/c by of "economic fustration.
AT COMMON LAW- d/c court do NOT recoginze either "commerial imrpacticability" nor economic fustration |
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what does the common law say about
d/c by "commerical impracticability or "economic frustation? |
AT COMMON LAW-
d/c court do NOT recoginze either "commerial imrpacticability" nor economic fustration |
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what does a "temporary impossibility do?
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generally temporary impossibility merely delays the k but does not d/c it
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when might the court give a court "temporary impossibility"?
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(1)weather--tornadoes, hurricanes,
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what is d/c by operation of law? give exs of when might occur (3)
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(1)bakruptcy- courts d/c against debtor (2)statue of limitations- statute which provides that after certain numbers of years, the cliam is barred (3)contracutal limiations- when the k itself specifies the time and manner in which suit may be brought
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what does the court rule about
d/c by operation of law- bankruptcy? |
courts d/c cliam by debtor
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what does the general rule for d/c by operation of law- statute of limitations?
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after certain number of years, the k' s claim is barred
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what does "contractual limitations mean"
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when the k itself specifies the time and manner in which suit must be brought
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what happens when one of the parties to a k does not perform or theartents not to perform? as specifed by the k
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have breach of k
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what is a breach of k?
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when one party member failures to perform in the manner called for the by the k
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NAME
this is when one party member fails to perform in the manner called by the k |
breach of k
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what actions may be taken if there is a breach of k? *6)
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(1)nonbreaching party may "waive " the breach (2)accept the performance w/in a "reservation of rights' (3)sue for damanges (4)nonbreaching party may rescind the k(5)nonbreaching party may bring an action for specfic performance (6)non-breaching party can ask the court for an injunction
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what does it mean when the nonbreaching party may "waive" the breach?
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party just ignores the breach
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NAME
this means that the party just ignores the breach of k |
"waive" the breach?
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what actions may be taken if there is a breach of k? *6)
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(1)nonbreaching party may "waive " the breach (2)accept the performance w/in a "reservation of rights' (3)sue for damanges (4)nonbreaching party may rescind the k(5)nonbreaching party may bring an action for specfic performance (6)non-breaching party can ask the court for an injunction
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how do we know if the party waived the breach? (2)
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nonbreaching party- expresses the k is wavied (2)silence-failure to object in a timely manner
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repeated branches and subsequent waivers may show that the parties (1)
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modified k
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if you modify the k, can you go back the original k?
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NO unless consent from ALL parties
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what does it mean when
in response to breach of k the nonbreaching party Accepts performance with a "reservation right" |
means accepts the defective performance but reserves the right to use for damages "under protest)
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NAME
this means that the nonbreaching party means accepts the defective performance but reserves the right to use for damages "under protest) |
accept performance with a "reservation right"
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what are the options for when
nonbreaching party accept performance with a "reservation of rights"? |
(1)pay full price "under protest)
(2)pay partialp rice "under protest withan offset of breach |
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what is the goal when the nonbrecahing party sues for damanges?
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place the injured party in the same position that would have been attained if the k had been performed
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compensatory damanges are also called (1)
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direct damanges
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(1)are also called direct damages
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compensatory damanges
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what are compensatory damanges?
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damages to compesnate for the loss-
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NAME
this is damages to compensate for loss |
compensatory damanges
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what is required for a person receive compenstory damanges?
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reasonable certaintiy
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T or F
in order to receive, compensatory damages, reasonable certainity is not required |
false
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what is the UCC seller's perspective in receiving compensatory damanges?
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pays
difference btwn the k and the resale price NOTE: if goods cannot be resold recieves full resale price...must decudct for expenses saved |
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what is the UCC purchasers perspective
describe compensatory damanges |
difference btwn teh k and the cost of converting the difference
NOTES must deduct for expenses saved |
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what is mitgation refer to?
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court order for both parties to "mitigate"
ex)seller must try to sell goods from another ex)purchaser must purchase the goods from anotehr |
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when is mitigation excused? (2)
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if causes unreasonable burden or the NOTHING that the injured party could do
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NAME
this refers to damages used to punish the breaching party |
punitive damages
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in k cases are punitve damages noramlly awared?
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no
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T or F
in k cases, it is common for the court to award punitifve damanges |
fasle
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what are consequential damages?
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damages which flow from the breach of k bc of their circumstances of the indivudal party
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NAME
these are damages which flow from the breach of k bc of their circumstances of the indivudal party |
consequential damages
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Can buyer recover for a breach plus for consequences of the breach?
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if a reasonable person in the same position as the contracting parties would have foreseen the probaility of such damaage
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in breaches of ks' when might they sue for liquidated damanges?
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damages called for in k--used when the contracting parties stipulate at time k formation certain amount should be paid in breach of k
ex)defaulting party must pay full amount of actual damages |
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if liquidating damage clause is unreasonable'
is the k void/ |
yes, void as penalty
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when are liquidated damages provisions valid?
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(1)it is diffuclty or impossible to prove damages or (2)amount specifed is not excessive when compared to the actual damages sustained
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NAME
this is a provision in k that says that if party at time of k that certain amount should be paid in breach of k |
liquidated damages
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what does it mean "nonbreaching party may rescind the k"
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means that the nonbreaching party has decided to void the k
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NAME
this means that the nonbreaching party has decided to void the k |
Nonbreaching party may rescind
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what is recission?
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refers to voiding the k bc of breach of k
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NAME
this refers to voiding the k bc of breach of k |
recission
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what does it mean
nonbreaching party may bring an action for specfic performance? |
courts, in its discretion compels the otehr party to carry out the terms of the k
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when is an action for specific performance (bc of breach of k) granted?
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only if the subjcet matter is unique....making monetary damages inadequate
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NAME
this type of action (made by nonbreaching parties) is usally made when the subject matter of the k is unique and making a monetary award of damages is inadequate |
action for specific performance
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what does it mean "nonbreaching party can ask the court for injunction?
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if the breaching party is doing an act prohibited by the k. the nonbreaching party may ask a court to order the breaching party to stop
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what is anticipatory repudation?
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when a party specifically declares that he wont perform in accordance with the terms of the k prior to the time the k is supposed to be performed
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NAME
this refers to when a party specifically declares that he wont perform in accordance with the terms of the k prior to the time the k is supposed to be performed |
anticipatory repudation
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what are some remedies for anticipatory repudation? (3)
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(1)dont do anything except state that the performance will be required (2)immediately bring lawsuit (3)cancel the k
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T or F
generally, a k may limit the remedies of the parties |
true
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can a k limit the remedies of the parties?
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yes
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what are some normal
k provisions that affect remedies for damages? |
(1)liquidated damages (2)exculpatory clause (limitation of liability clause)
(3)k states that the parties may not be liable in event of breach MUST BE CLEAR AND UNAMBIGUOUS |
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when is the only time that
if a k states that the parties may not be liable in event of breach NOT valid? exception to rule? (2) |
inequailtiy of bragaining power or the parties resulting in opression
ex)tiny print or uneducated parties |
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what are the ways to d/c a k
do complete list |
Differ Ways to D/C K
1. d/c by performance 2. D/c by action of parties a. d/c by unilateral action b. d/c by agreement of both parties (either by ) i. agreement in original k ii. mutual recession iii. novation 3. d/c by external causes (circumstances beyond control of both parties) a. d/c by impossibility i. impossible to perform ii. law makes illegal iii. subject matter destroyed b. d/c by economic disappointment c. temporary impossibility d. d/c by operation of law i. bankruptcy ii. statue of limitations iii. contractual limitations |
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what are the ways to d/c a k
do complete list |
Differ Ways to D/C K
1. d/c by performance 2. D/c by action of parties a. d/c by unilateral action b. d/c by agreement of both parties (either by ) i. agreement in original k ii. mutual recession iii. novation 3. d/c by external causes (circumstances beyond control of both parties) a. d/c by impossibility i. impossible to perform ii. law makes illegal iii. subject matter destroyed b. d/c by economic disappointment c. temporary impossibility d. d/c by operation of law i. bankruptcy ii. statue of limitations iii. contractual limitations |
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What are the ways to d/c by action of parties? (2)
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(1)d/c by unilateral action (2)d/c by agreement of both parties due to
a)agreement in original k b)mutual recession c)novation |
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what are the differ ways to d/c by external causes?
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(1)d/c by impossibility
a)law makes illegal b)impossible to perofrm (c)destroyed subject matter (2)d/c by economic disappointment (3)temporary impossibility (4)d/c by operation of law a)bankruptcy b)statue of limitations c)contractual limitations |
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what is d/c by external clauses/
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dc bc of impossibility
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