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75 Cards in this Set
- Front
- Back
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If party can't recover on invalid K, how can he recover for value of services performed?
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Restitution / quasi-contract (reasonable value)
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What is quasi-contract?
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Restitution: party recovers value of services performed to prevent unjust enrichment if K is invalid
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How do you accept unilateral K?
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Performance
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When is lack og quantity term OK?
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In Art. 2 REQUIREMENTS K (Requirements measured objectively)
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Is an option contract without consideration valid?
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MBE: no
NY: a signed, written agreement NOT to revoke an offer is an enforceable option even w/out payment |
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Can offeror revoke unilateral K after offerree starts performance?
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MBE: no, though "mere preparation" doesn't count
NY: yes, revocation allowed until performance is complete (though performer can recover reasonable value under quasi-K) |
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Firm offer definition
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Sale of goods (Art. 2), if MERCHANT promises in SIGNED WRITING to keep offer open, it's irevocable
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Must acceptance mirror offer?
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Common law: yes (adding/changing term is rejection)
NY: no (adding/changing term does not prevent acceptance) |
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When does added term become part of K under Art. 2?
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Only if both parties are MERCHANTS, term is not MATERIAL, and other parties does not OBJECT within reasonable time
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What happens if either party dies beore acceptance?
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Revocable offer: terminated
Irrevocable offer: unaffected |
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Is starting performace an acceptance?
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Bilateral K: yes
Unilateral K: only completing is acceptance, but MBE: offeror cannot revokea after performance starts NY: offeror can revoke until performance is complete |
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Effect of improper performance?
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Common law: acceptance and breach
Art. 2: acceptance and breach unless seller sends goods as accomodation |
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Is past consideration good?
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MBE: no
NY: yes, if expressly stated in signed writing that can be proven |
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Does modification require consideration?
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Common law: yes (Preexisting Duty Rule)
(But remember, past consideration is good consideration if expressly stated in a signed writing, and can be proven) Art. 2: |
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Does partial payment of debt cancal outstanding debt if creditor agrees?
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If due and undisputed: no
If early or disputed: yes NY: yes, if in signed writing, even if due and disputed |
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What if you promise to pay a debt in writing, collection of which is barred by S/L?
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It's enforceable if in writing, even without consideration
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Promissory estoppel in K context
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Foreseeable reliance makes a promise enforceable even without consideration (tenant improves apt building based on landlord's promise to renew rent)
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Is a lifetime K within SoF?
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MBE: no
NY: yes |
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What is suretyship?
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Promise to answer for debt of another. Must be in writing to satisfy SoF.
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Can parties agree by contract to prohibit oral modification?
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Common law: no
Art. 2: yes |
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When is writing satisfactory for Art. 2?
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quantity term + signed by party to be charged with breach
(unless merchant confirmation memo applies) |
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When is writing satisfactory under common law?
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contains all material terms + signed by party to be charged
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When is a writing not required for sale/lease of real property?
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Lease of less than 1 year, or
Part performance: 2 of the following: 1. buyer in possession 2. buyer made improvements 3. buyer made some payments |
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When is writing not required under Art. 2 in sale over $500?
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1. Goods accepted by buyer (applies only to those goods accepted)
2. Custom-made goods 3. Merchant's conformation memo (both parties merchants; writing claims agt has quantity term; other party does not object in writing in 10 days) |
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When is writing not required for suretyship?
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MBE: When surety's main purpose in making promise is to benefit himself
NY: no exception |
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Exceptions to parole evidence rule
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1. Establish defense of formation
2. Correct clerical error 3. Interpret vague or ambiguous term 4. Supplementing partially-integrated writing (final but not complete) 5. Subsequent developments |
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Is use of sample express or implies warranty?
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Express
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What is implied warranty of merchantability?
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Warrant that goods fit for ordinary purpose - requires seller to be merchant who deals in goods of this kind
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What is implied warranty of fitness?
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Warrant that goods fit for buyer's purpose. Seller need NOT be merchant, but must know of buyer's planned specific use.
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What does "as is" / "with all faults" dislcaim?
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All implied warranties; can't disclaim express
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Can S limit B's remedies for breach of a warranty?
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Yes, if not unconscionable.
Personal injury in consumer goods context is unconscionable. If limited remedy fails of its essential purpose, remedy provisions of Art. 2 apply. |
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When does buyer take ROL on shipment K?
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When S delivers to common carrier, makes delivery arrangements and notifies B
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When does ROL pass to buyer in an in-store sale?
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When B takes possession.
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When does ROL pass to buyer in a non-merchant sale?
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Once S tenders goods (makes available to B)
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To what Ks does Perfect Tender Rule apply?
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Art. 2
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If S makes imperfect tender under Art. 2, can he cure?
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Only if time for performance has not yet expired, or if B has accepted imperfect goods in the past.
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Does perfect tender rule apply to installment Ks?
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No
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What if S makes imperfect tender and B does not object?
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Implied acceptance: if B keeps goods after having had oppotunity to inspect, he cannot reject them but CAN still get damage.
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ROL under Art. 2A
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On lessor, even if item is in lessee's posession, except in finance lease
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When can B revoke acceptance of goods?
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Generally he cannot, unless non-conformity substantially impairs value and was latent.
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What are B's remedies under Art. 2 in the event of rejection or revocation?
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He can either
1. Return goods at seller's expense, 2. Get a refund, 3. Get damages for breack of K |
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Must performace be perfect under common law?
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No, substantial performance is all that's required.
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Is finishing a job late a material breach under common law?
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No, unless K indicates "time is of the essence"
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When is the other party's breach an excuse for non-performance under common law?
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Only when breach is material
(Can get damages for any breach) |
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What are B's remedies if S's tender is not perfect under Art. 2
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1. Reject all goods
2. Accept all goods 3. Reject some, acept others In any scenario, he can also sue for damages |
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Is anticipatory repudiation a material breach?
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Yes
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When can party demand adequate assurance?
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Under Art. 2 Ks, when party ahs reasonable groudns for questioning other party's performance and request is made in writing
(Failure of other party to comply is anticipatory repudiation) |
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What is rescission?
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Agt to cancel K
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What is requirement for rescission to be effective?
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Each party must have some performance remaining
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Is impossibiliy (i.e. destruction of item necessary) an excuse for non-performance?
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Common law: yes
Art. 2: yes, but S who bore ROL when goods were destroyed is excused by impracticality only if damages goods were "identified in K" and set aside for B |
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Is increase in cost of S's performance an excuse for non-performance?
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MBE: never
NY: maybe; analyze absolute dollar value and percentage increase |
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Is failure of an express condition an excuse for performance?
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Yes
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Who can excuse the occurance of a condition?
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The party protected by that condition
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When is specific performance available under Art. 2?
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When good are unique, or there are other proper circumstances - dry market, or goods are art, antique or custom-made
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When are LDCs upheld?
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When they're reasonable and damages would be difficult to estimate.
Hallmark is flexibility (per day, not fixed amount) Common law: must be reasonable at time K was made Art. 2: can be reasonable either when K was made or at time of breach |
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Does B have a duty to cover under Art. 2?
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No
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Does S have duty to resell under Art. 2?
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No
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When does S get lost profits under Art. 2?
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When he's inventory dealer and WOULD HAVE realized two profits but for breach
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Who cannot get consequential damages?
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Seller under Art. 2
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What are consequential damages?
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Special damages to THIS plaintiff that were reasonably foreseeable by breaching party at time K was made - these are recoverable except for by sellers under Art. 2
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Must party mitigate damages under common law?
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Yes
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What does "mitigation" mean in employment context?
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Same kind of job in same city
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Does owner who entrusts goods to a merchant who deals in goods of that kind have rights against a BFR?
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No
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When does third party beneficiary have legal rights?
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When he's an intended beneficiary, and knowledge + reliance (unless language in K says otherwise)
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Is promisor liable to third party beneficiary?
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Yes, though he can raise same defenses as he could to promisee
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Is promisee liable to donor beneficiary?
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No
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Must parties get consent of obligee to delefate duties?
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Unless K says otherwise or party has specific skill or reputation --> No, but absent novation, delegator remains liable on K
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Is a delegate liable to the obligee?
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Yes, if he receives consideration
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Is consideration required for an assignment?
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No
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What happens if a party assigns by K says "rights not assignable"?
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Assignment valid, but obligor can sue assignor for breach of K
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What happens if a party assigns by K says "all assignments void"?
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Assignment is not valid
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What can an assigment not do?
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Substantially change duties of obligor
Right to receive payment: always OK Assignment of services: never OK |
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Can an assignee of right to receive payment sue the obligor?
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Yes, but obligor not liable if he's unaware of the assignment
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Rule for gratuitous assignments (gifts)
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Easily revoked, last in time controls
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Rule for assignments for consideration
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First in time wins over all future assignments for consideration and all future and past gratuitous assignments
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