Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
22 Cards in this Set
- Front
- Back
|
Privity |
A person cannot incur liability under a contract to which he or she is not a party |
|
|
Promisor, Assignor, Assignee |
Promisor makes the deal with the assignor. The assignor makes a deal with the assignee. |
|
|
Novation |
Principle consistent with privity.
The substitution of parties to an agreement, or the replacement of one agreement by another agreement.
With consent. |
|
|
What is the Exception to Privity |
Statutory Assignment (not common law rule). Assignee may sue the promisor |
|
|
Requirements of Statutory Assignment |
1. There must be a written agreement between the assignor and the assignee 2. Must be signed by at least the assignor 3. Must be absolute, unconditional 4. Written notice is made to the promisor |
|
|
Equitable Assignment |
Privity applies.
An assignment that can be enforced if all parties can be brought before the court.
The contract is subject to the existing equities meaning that the assignee takes the good and the bad of the contract. |
|
|
When can a contract not be assigned? |
If it is prohibited in the contract For personal services (Beiber example) |
|
|
8 ways a contract can be discharged |
1. Performance or Tender of Performance (tried but you changed your mind) 2. Exercise a preset option to terminate 3. Non-occurrence of a condition precedent 4. Occurrence of a condition subsequent (Dollar goes below 80 cents) 5. Occurrence of an implied term (Acts of God) 6. Doctrine of Frustration (unable to perform, beyond your control, must be unique) 7. By Operation of Law (a law that makes contract illegal) 8. By subsequent agreement (waiver)
|
|
|
Two fundamental types of breach |
Express repudiation Doctrine of Substantial Performance |
|
|
Discuss Express Repudiation |
Nothing happens. One party's non-compliance with the contract.
Result is the suffering party is discharged from the contract and breaching party can be sued for damages +
|
|
|
Anticipatory Breach |
A type of breach under express repudiation where a conclusive act of breaching party allows suffering party to act freely immediately. No more obligation even though contract date has not occurred. |
|
|
Discuss the Doctrine of Substantial Performance |
Part of the contract is completed.
No discharge.
Principle is that the court would attempt to put you in the position where the contract was completed. Therefore, cost of a job would be same. If you found someone to complete the job, minus that cost and pay the remainder to the original party.
Must find completion through mitigation. |
|
|
Mitigation |
Try to find the best price
Example: 3 quotes |
|
|
Fundamental Breach |
Minor type of breach where performance is so bad that there is no value in the contract
This voids exemption clauses |
|
|
Exemption clauses |
Declaration within a contract that the party is not responsible for acts that may occur
Can be voided via Fundamental breach |
|
|
Under breach of contract, what monetary damages can be asked for? |
General Damages including: 1. Reliance 2. Consequential 3. Expectation |
|
|
Reliance Damages |
Money spent prior to breach
Ex. Broker, lawyer, movers |
|
|
Consequential Damages |
Flow from the breach. Because of the breach, damages occur after the breach.
Ex. Hotel costs cause of nowhere to live. Tenant sues you because you had contract so you can sue for what you have to pay tenant |
|
|
Expectation Damages |
Lost profit or gain due to breach. |
|
|
Equitable Remedies |
Specific performance: unique items (real estate) Can't be personal services. Must be an item
Injunction: cease doing something. Court order to stop them from doing something. |
|
|
Liquidated Damages |
Preset in contract - cannot sue for equitable or general damages
Reasonable estimates
|
|
|
Position |
Court will try to put you in a position as if the contract were performed. |
