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90 Cards in this Set
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- Back
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§1
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Promise or set of promises
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What is a contract?
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§17
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Requires a bargain except as stated in §82-94
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What is a contract?
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§71
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A performance or return promise must be bargained for; (2)(3) says it is either an act, forbearance, or creation modification or destruction of legal relationship; can be given to a third party
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What is consideration?
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§79
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If there is consideration, no additional requirement
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What is consideration?
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§90
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A promise which…should reasonably expect to induce action or forbearance on the part of [promisee or third party]; binding if injustice can be avoided only by enforcing the promise; remedy limited as justice requires
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The principle of Reliance
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§73
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Performance of a legal duty is not consideration; consideration if different from what was required by that legal duty
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Legal Duty Rule
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§175
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(1) If assent is induced by improper threat which leaves no alternative, contract is voidable; (2) if threat is by third party, voidable unless other party has no reason to know of duress (in good faith) and relies materially on transaction
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Duress and Improper Threats
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§176
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Situations where a threat is improper
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Duress and Improper Threats
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§208
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If a contract or term is unconscionable at time contract is made, court can (1) not enforce contract (2) not enforce specific term or (3) limit application of unconscionable term
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Unconscionability
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§77
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An alternatives contract is not consideration FROM PROMISOR unless (a) each term would be consideration if bargained for OR (b) one alternative would be consideration AND it appears that the promisor will eliminate the alternatives that are not consideration
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Illusory Promises/Mutuality
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§279
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(1) a contract accepted by obligee in satisfaction of obligors existing duty; (2) discharges original duty and removes obligee's ability to enforce original duty
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Substituted Contract
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§280
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Novation - substituted contract that includes a third party
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Substituted Contract
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§281
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(1) Accord is a contract under which obligee promises to accept a stated performance in satisfaction of existing duty (discharges original duty), (2) Until performance, original duty is suspended unless there is breach of accord by obligor; obligee can then enforce either orginal duty or duties under the accord, (3) Breach by obligee does not discharge orginal duty, but obligor can sue for specific performance and damages for partial breach of accord
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Accord & Satisfaction
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§89
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Promise modifying existing duty is binding (a) if fair and equitable in view of unanticipated circumstances, (b) to extent provided by statute or (c) to extent that justice requires
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Modification of executory (not performed) contract
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§84
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(1) These promises are binding unless (a) condition was material to exchange or (b) promisor assumed risk of uncertainty of occurrence, (2) If this promise is made before time for condition has expired and condition is within control of promisee or beneficiary, promisor can make new duty subject to occurrence of that condition if (a) reasonable time, (b) not unjust
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Promise to Perform Despite Non-Occurrence of Condition of Original Contract
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§82
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(1) binding if debt would be enforceable except for SOL (2) facts operating as such a promise ((a) voluntary acknowledgment (b) voluntary transfer as part payment (c) statement that SOL will not be pleaded
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Promise to pay debt barred by Stuatue of Limitations
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§83
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Binding if made expressly and if made after proceedings initiated
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Promise to pay debt barred by bankruptcy
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§86
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(1) Binding to extent necessary to prevent injustice; (2) NOT binding (a) if promisor was not unjustly enriched by past consideration or (b) if value of new promise is disproportionate to past benefit received
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Promise for Past Benefit Received
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§344
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(a) Expectation - as if contract was performed; (b) Reliance - as if contract was never made; (c) Restitution - restoration of benefit conferred
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Types of Remedies
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§348(2)
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If loss is not proved with substantial certainty can recover for (a) diminution of market price caused by breach or (b) reasonable cost of completion or remedy if not disproportionate to lost value
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Breach resulting in Defective or Unfinished Construction
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§350
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There is a duty to attempt to mitigate damages to a reasonable extent
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Mitigation of Damages
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§351
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(1) Unforeseeable damages are not recoverable; (2) loss is foreseeable if it follows (a) in the ordinary course of events or (b) because of special circumstances known by breacher; (3) court can limit damages
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Foreseeability of Damages
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§352
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Damages that cannot be established with certainty by the evidence are not recoverable
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Certainty of Damages
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§353
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Damages are not recoverable unless the breach cause bodily harm or is of such a kind that emotional disturbance was particularly likely to result
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Emotional Distress
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§355
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Not recoverable unless tortious breach
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Punitive Damages
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§356
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(1) Fixed damages must be reasonable in light of anticipated or actual loss and actual loss must be difficult to ascertain; (2) penalty clauses are not enforceable
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Liquidated Damages
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§359
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(1) Not available if damages are adequate to protect expectation interest; (2) Adequacy in regards to one term does not preclude specific performance for whole contract; (3) should not be refused because of a remedy besides damages
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Specific Performance
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§360
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Factors for determining adequacy of damages; (a) uncertainty; (b) difficulty in finding substitute; (c) uncollectible
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Specific Performance
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§370
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There must be a benefit conferred
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Restitution Damages
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§371
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Damages measured by (a) reasonable value of benefit conferred or (b) extent of other parties increase in value of interests
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Restitution Damages
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§227
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(1) Interpret in favor of obligee unless the condition is within their control or they assumed the risk
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Interpreting Contract Conditions
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§201
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(1) Same meaning=meaning prevails, (2) Different meanings=interpret according to one meaning (a) if a party doesn't know of any other meaning or (b) if a party knows that the other attaches a specific meaning
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Whose meaning prevails?
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§20
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(1) No manifestation of mutual assent if parties attach different meanings to them and (a) neither knows or has reason to know of the other meaning or (b) each knows/reason to know the others meaning, (2) Manifestations operate properly if party doesn't know/reason to know of another meaning and the other party knows of his
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effect of misunderstanding
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§204
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Court supplies a reasonable term
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Omission of Essential Term
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§219
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Habitual or customary practice
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Usage (Definition)
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§220
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(1) Interpret in accordance with relevant usage if each party knew/reason to know of usage and neither party know/reason to know of others inconsistent meaning, (2) If meaning attached by one party is relevant, and other party knew/reason to know of it, use that meaning
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Usage (Relevant to Interpretation)
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§221
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Agreement supplemented/qualified by reasonable usage if each party knew/reason to know of usage and neither party knew/reason to know of others inconsistent intention
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Usage (Supplementing an Agreement)
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§222
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(1) Definition - Usage having such regularity o observance as to justify expectation that it will be observed; (2) Existence and scope of usage are questions of fact, unless embodied in writte trade code or similar writing, then question of law, (3) Unless otherwise agreed, trade usage applies
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Usage (Trade Usage)
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§223
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(1) Definition - sequence of previous conduct between parties that creates common understanding; (2) gives meaning or supplements agreement unless otherwise noted
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Course of Dealing
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§24
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Manifestation of willingess to enter into a bargain; justifies others belief as such
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Definition of an Offer
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§26
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Manifestation of willingness to enter a bargain is NOT an offer if the addressor knows/reason that the person does not intend to make a bargain w/o further assent
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Preliminary Negotiations
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§38
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(1) Power of accepted termionated by rejection absent offeror's contrary intention; (2) Intention not to accept offer is rejection unless offeree wants to take under advisement
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Rejection
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§41
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(1) Power of acceptance terminated at end of specified time or end of reasonable time
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Lapse of Time
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§39
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(1) Definition - offer made by offeree relating to same matter as original offer and porposing different substitute bargain; (2) terminates offerees power of acceptance unless offeror manifests contrary interpretation
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Counter-offers
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§59
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A qualified acceptance is actually a counter offer
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Counter-offers
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§37
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Power of acceptance of Options K NOT terminated by rejection, counteroffer, revocation or death/incapacity unless requirements are met for discharge of duty
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Termination of Acceptance under Options K
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§42
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Offeree's power of acceptance terminated when he receives manifestation of intention not to enter into the proposed contract.
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Communication of Revocation
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§43
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Offeree's power of acceptance terminated when offeror takes definite action inconsistent with intention to enter into proposed contract
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Communication of Revocation
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§87
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(1) Binding under standard terms; (2) if substantial reliance, binding to extent necessary to avoid injustice
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Options Contract
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§45
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(1) When offer invites acceptance by rendering performance and NOT promissory acceptance, option contract created when performance begins, (2) Offeror's duty of performance conditional on completion of invited performance
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Option Contract Created by Part Performance
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§30
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(1) Offer can specify type of acceptance; (2) acceptance by any manner and by any reasonable medium unless otherwise indicated by language or circumstances
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Forms of Acceptance Invited
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§60
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If time place and manner prescribed, must be complied, but if suggested, can use other method
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Forms of Acceptance Invited
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§49
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If communication delayed, period of acceptance is not extended, BUT if delay is due to fault of offeror and offeree unaware, contract can be created by acceptance within the period permissible if offer was properly dispatched
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Effect of Delay in Communicating Offer
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§63
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Unless otherwise provided; (a) operative when accepted if made in a manner and medium ivited by offer whether or not it reaches offeror; (b) acceptance of option contract not operative until received by offeror
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Time when Acceptance Takes Effect
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§64
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Acceptance by instantaneous two way means governed by standard principles
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Acceptance by Phone
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§65
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Unless otherwise provided, medium is reasonable if used by offeror or customarily used in similar transactions at time and place offer is received
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Reasonableness of Medium
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§66
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Acceptance must be properly dispatched
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Reasonableness of Medium
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§67
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If received within time properly dispatched acceptance would have, acceptance regardless of proper dispatch
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Reasonableness of Medium
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§68
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Received when the writing comes into the possession of the addressee or someone authorized by them to receive or in another otherwise authorized means
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Receipt of Revocation, Rejection or Acceptance
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§32
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In case of doubt offer is interpreted as inviting acceptance either by promise to perform or by rendering performance
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Invitation of Promise or Performance
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§54
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(1) If acceptance by performance allowed, no need to notify unless otherwise requested, (2) If offeree knows offeror has no means of learning of performance, duty of offeror is discharged unless (a) offeree exercises reasonable diligence to notify or (b) offeror learns of performance within reasonable time or (c) offer says notice not required
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Acceptance by Performance and Need to Notify Offeror
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§69
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(1) Silence by acceptance by offeree only allowed (a) where offeree takes benefit of offered services with reasonable opportunity to reject them and knowledge that compensation expected; (b) where offeror has given reason to believe silence can manifest acceptance; (c) Where previous dealings indicate as such; (2) offeree who takes act inconsistent with offerors ownership of offered thing is bound
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Acceptance by Silence
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§70
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Effective as an offer to original offeror
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Late/Defective Acceptance
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§33
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(1) Offer cannot be accepted unless terms are reasonably certain; (2) terms are reasonably certain if they provide a basis for determining breach and remedy; (3) One or more open/uncertain terms may show that it is not actually an offer or acceptance
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Certainty and Acceptance
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§34
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(1) The terms of a contract can be reasonably certain even if parties can choose terms in course of performance; (2) Part perfomance can remove uncertainty and make K enforceable; (2) Action in reliance can make remedy appropriate even w/ uncertainty
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Certainty; Choice of Terms
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§209
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(1) Writing or writings constituting final expression of one or more terms of an agreement; (2) determined by court before questions of interpretation; (3) if a writing appears to be complete agreement, integrated unless evidence indicates otherwise
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Integrated Agreements
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§210
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(1) Completely integrated - adopted by parties as complete and exclusive statement of terms; (2) Partially integrated - anything other than completely; (3) determined by court before other questions
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Integrated Agreements
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§213
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(1) Discharges prior inconsistent agreements; (2) if completely integrated, discharges agreements within its scope; (3) a non-binding integrated agreement can render a term inoperative which would have been part of agreement if not integrated
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Integrated Agreements
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§212
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(1) Interpretation directed to the meaning of the terms of the writing(s); (2) questions of interpretation left to trier of fact if credibility of evidence or choice of alternatives is at issue; otherwise it is a question of law
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Integrated Agreements
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§214
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Prior or contemporaneous agreements or negotiations admissible as evidence to establish (a) integratedness of agreement; (b) nature of integratedness; (c) meaning of writing; (d) invalidating causes; (e) grounds for denying remedies
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Parol Evidence Rules
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§215
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A binding agreement makes such evidence inadmissible to contradict terms
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Parol Evidence Rules
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§216
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(1) Evidence of consistent terms is admissible to supplement NON-COMPLETELY INTEGRATED agreements; (2) Agreement is not completely integrated if it omits a term which is (a) agreed to for separate consideration or (b) a term which may NATURALLY BE OMITTED in the circumstances
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Parol Evidence Rules
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§211
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(1) When a party to agreement assents to writing and has reason to believe that similar ones are regularly used to embody similar agreements, it is adopted as an integrated agreement; (2) Interpreted as treating alike all those similarly situated; (3) Where other party has reason to believe the assenting party would not do so if he knew the writing contained a particular term, the term is not part of the agreement
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Form Contracts
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§151
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A belief that is not in accord with the facts
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Mistake (Defined)
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§152
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(1) Where mutual mistake goes to basic assumption and has material effect, K voidable unless adversely affected party bore risk; (2) take account of relief to determine effect
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Mutual Mistake (Voidable)
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§155
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Court can reform K at request of a party to express agreement except to extent that rights of third parties will be unfairly affected
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Mutual Mistake (Reform K)
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§153
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Voidable if risk not borne AND (a) enforcement unconscionable or (b) other party had reason to know of mistake or mistake was his fault
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Unilateral Mistake
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§159
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Misrepresentation is an assertion not in accord with the facts
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Nondisclosure/Misrepresentation
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§161
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Nondisclosure functions as an assertion that fact does not exist ONLY WHEN: (a) Disclosure necessary to prevent previous assertion from being misrepresentation, (b) Disclosure would correct a mistake of other party as to basic assumption and non-disclosure is thus acting in bad faith; (c) Disclosure will correct mistake as to contents or effect of writing; (d) other party is entitled due to relation of trust and confidence
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Nondisclosure/Misrepresentation
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§261
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When performance rendered impractical due to occurrence of event (not his fault), non-occurrence of which was basic assumption, duty to perform discharged unless K says otherwise
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Discharge by Supervening Impracticability
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§262
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Death or incapacity of necessary person justifies discharge
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Discharge by Supervening Impracticability
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§263
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If thing is unavaiable that was necessary, discharge is justified
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Discharge by Supervening Impracticability
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§264
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Prevention by governmental regulation or order justifies discharge
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Discharge by Supervening Impracticability
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§265
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Supervening frustration of a parties purpose in a contract which was not his fault discharges remaining duty unless K or circumstances indicate to the contrary
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Discharge by Supervening Frustration
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§266
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(1) If performance is rendered impractical without fault at time K is made, performance discharged unless K or circumstances indicate to the contrary, (2) If principle purpose is substantially frustrated without fault at time K is made, duty discharged unless K or circumstances indicate to the contrary
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Existing Impracticability or Frustration
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§267
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Duties of other party may be affected unless they have assumed the risk
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Effect of Impracticability or Frustration on Other Party's Duties
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§268
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Prospective failure may justify discharge of other party's duties or allow suspension of performance unless they assumed the risk
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Effect of Impracticability or Frustration on Other Party's Duties
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§269
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Temporary failure suspends but does not discharge duty unless it would be materially more burdensome after impracticability/frustration subsides
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Effect of Impracticability or Frustration on Other Party's Duties
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§270
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Duty to render other parts of performance unaffected if (a) still practicable to render substantial performance or (b) the obligee agrees to render any performance in full and allow obligor to retain previously rendered perfomance
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Partial Impracticability
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§272
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(1) Either party may have claim for relief including restitution; (2) if standard rules will not avoid injustice, court may grant relief as justice requires including reliance
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Relief For Impracticability/Frustration
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