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29 Cards in this Set

  • Front
  • Back
What are the 3 types of mistakes?
1. unilateral mistake - one pty is mistaken as to a material fact. The cts will enforce the K with the mistake as long as the non mistaken pty did not know or should have known of the mistake.

2. mutual mistake - both ptys are mistaken as to the material fact.

3. mutual mistake of subject matter - an unenforceable K. An item substantially different than what ptys bargained for.

4. mutual mistake of value - an enforceable K.
Raffles v. Wichelhouse
A shipload of cotton was supposed to be sent from Bombay on a shape named Fearless. 2 ships were named Fearless. 1 that sailed in October, and the other that sailed in December. The buyer believed that they were discussing the ship that would sail in October. While the seller believed they were discussing the ship that would sail in December.

*Mutual mistake of subject matter and did not enforce the agreement.*
Sherwood v. Walker
The case involved a barren cow, which really at the time of the sale was not barren at all, it was pregnant with calf.

*Mutual mistake of subject matter and did not enforce the K.*
What are the elements in order to prove fraud?
1. misrepresentation of fact
2. intent to deceive
3. reliance on the misrepresentation
4. damage.
What are the 2 silences in CA?
1. In real estate contracts, all known latent defects -- all known hidden defects must be closed.

2. In sale of car, all known safety defects must be closed.
Who can be sued for fraud if they misrepresent the law?
professionals, lawyers, judges, real estate brokers involved in real estate transactions, and stockbrokers involved with stock transactions.
what remedy is given if undue influence is found?
Rescission is the remedy given if undue influence or duress is found. Undue influence is where there is a special relationship between the parties. One uses that relationship to persuade another into entering into a contract. Duress on the other hand is where there is a threat of force or intimidation used to coerce a person into entering into a contract.
What is Adhesion contracts?
An adhesion contract is a take it or leave it contract. There is no negotiation between the parties. If however a vague or ambiguous term is found in the contract of adhesion, the courts will construe that term against the one who wrote it.
Name the 5 types of contracts that require a writing under the statute of frauds?
contracts involving an interest in real estate. The one year rule, collateral promises, contracts where the consideration is marriage, and contracts for the sale of goods, 5 hundred dollars or more.
what is dowry?
a gift from brides family to the groom
what is Prenuptial agreement?
Prenuptial agreement is a contract entered into before marriage that will discuss the distribution of assets upon death or divorce. And a postnuptial contract is a contract entered into after marriage, which discusses the distribution of assets upon death or divorce.
hat is necessary in order to meet the writing requirement for a contract for the sale of goods?
Subject matter must be stated, quantity, and signed by the party to be charged.
what is parol evidence rule?
1. evidence can be introduced to explain a vagues or ambiguous term
2. subsequent modification
3. show duress or fraud
4. mistake and clerical error
5. void or voidable
What is an integrated contract?
Full and final expression of the parties agreement.
all rights are assignable.
if k itself prohibit assigment, can't be assigned
if assignemnt will incrae the risk to the obigor, can't be assigned
all duties are delegable.
a. if a k prohibit delegation, duty can't be delegated
b. if performance will vary, duty can't be delegated i.e old lawyer v new lawyer.
Three types of 3rd party k
1. creditor beneficiary- a K is created to extinguish a debt owed to a 3rd pt
- is enforceable by 3rd pty
2. donee beneficiary- K created to make a gift to a 3rd pty
- a donee beneficiary may enforce the k, once theire rights vest
3. incidental beneficiary k- an unintended beneficiary receive a benefit from another's k
- no right to enforce
what are 3 types of conditions?
1. Condition Precedent- future even that must occur before a pty becomes obligated under k.
2. Condition subsequent- a future event that will terminate a ptys continued performance under a k
3. Condition concurrent: simultaneous exchange of events most common
what is satisfaction?
can be make a condition
- if a k is personal in nature, cts used a subjective test, the person must be be satisfied
what is novation?
substitution of a new pty into a k. in order to occur, all ptys must agree. once a pty is relieved of obligation, no longer responsible under novation.
what are three name law of impossibility?
1. commercial impossibility- a K becomes impossible to completed, pty relived of obligation under a k.
i.e rent house, burn down, don't pay
2. commercial frustration- underlying purpose of the K becomes frustrated at the time the K is due, ptys relieved of K
3. commercial impracticability- K extremely expensive to fulfill, ptys relieved under K.
what is compensatory damage?
to compensate for the loss of bargain due breach of K.
Three different measurements for recovery under compensatory damage.
1. the measurement for recovery is loss's of profit labor and materials
2. substantial performance as been made, recovery is K price cost to complete
3. middle of construction
Hadley V. Baxendale
K was to have crank shaft delivered in one day. Breach of K crank shaft delivered in a couple days. Mill sued for loss of profits bc the mill had to shut down to Wait for crank shaft.
The rule of law is an order to collect consequential damages. The damages must be foreseeable.
what is punitive damages?
damages to punish, above and beyond the actual damage sustained
what is nominal damages?
as little as $1
What is liquidated damage?
A liquidated damage is an amount stated in the body of the contract. In the case of breech, that dollar amount will be paid. The amount cannot be so high as to be a penalty though.
what is equitable remedies: non monetary recovery 3r's
1. reformation: ct will rewrite a k, mistake or reform under usury K
2. restitution: giving back consideration exchanged
3. recession: undue a K
what is Implied in law?
Implied in law is where there is no contract between the parties. But the court will create a contract to avoid unjust enrichment. And be familiar with quantum meruit. as much as he or she deserves. And that's where personal services have been rendered