Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/22

Click to flip

22 Cards in this Set

  • Front
  • Back
If there is an honest dispute as to whether B has a valid claim against A, or if the amount of the claim is unliquidated (uncertain), what may happen for B’s discharge in full?
(a) Payment by A of a lesser amount than that claimed by B is consideration for B’s discharge in full [if there is an honest dispute as to whether B has a valid claim against A]
When will a WAIVER occur?
(a) A waiver occurs when a party to an existing contract promises to perform even though some condition to his obligation to perform has not yet occurred.
How is a WAIVER enforceable?
(a) A waiver is enforceable IF it is given in exchange or some separate consideration OR if: (i) The waived condition was not a material part of the bargain; AND (ii) Uncertainty of the occurrence of the condition was not an element of the risk assumed by the party who gives the waiver.
How can a WAIVER be RETRACTED?
(a) A waiver can be retracted if: (i) It was not given for separate consideration; (ii) It relates to a condition to be fulfilled by the other party to the contract, rather than a third party; (iii) The other party has not changed position in reliance on the waiver; and (iv) The retraction occurs before the time that the waived condition was supposed to occur, and the party who gave the waiver either gives notice of his intention to retract while there is still a reasonable time for performance, or provides a reasonable extension of the time in which the other party may perform.
If a party represents to the other (by words or conduct) that he will not insist on literal performance of some condition on which his duty to perform depends, and the other party relies to his detriment thereon, what will the first party have done with the condition?
(a) The first party will have WAIVED the condition. (b) Although some courts talk in terms of waiver in these situations, it is more accurately characterized as an estoppel.
How may a waiver of claims occurring as a result of a breach of contract be waived?
(a) Under UCC section 1-107, any claim or right arising out of an alleged breach of contract may be discharged in whole or in part without consideration by a written waiver signed and delivered by the aggrieved party.
When may a party who waives performance of a payment term during the course of performance retract its waiver?
(a) They may retract their waiver with respect to future payments, but not with regard to past shipments.
Do WAIVERS require detrimental reliance under the UCC?
(a) No
What is a difference between a modification and a waiver?
(a) A contract modification cannot be cancelled without consideration (b) A waiver may be retracted unilaterally upon giving reasonable notice. UCC 2-209(5) provides that a waiver may be retracted unless the non waiving party relies on the waiver. Hence, waivers may exist without detrimental reliance.
Are moral obligations typically enforceable? Why?
(a) A moral obligation is typically UNENFORCEABLE because they lack CONSIDERATION.
What are the EXCEPTIONS to the lack of enforceability in moral obligations due to the lack of consideration?
(a) Promise to pay a debt barred by the statute of limitations (b) Promise to pay a debt discharged by bankruptcy (c) Promise to perform a voidable obligation. (d) Promise to pay moral obligation arising out of past economic benefit to promisor
What kind of promise is enforceable in the exception—PROMISE TO PAY A DEBT BARRED BY THE STATUTE OF LIMITATIONS to the lack of enforceability due to lack of consideration rule?
(a) The NEW promise, not the old debt that is enforceable. (b) Ex: if the devbtor promises to pay less than the amount of the barred debt, or promises to repay the debt only in installments, that is all she is obligted to do. (c) A CONDITIONAL PROMISE is enforced in accordance with the condition EX: “ill pay you the $800 by June 1”.
What is the effect of acknowledgement or part payment in the exception—PROMISE TO PAY A DEBT BARRED BY THE STATUTE OF LIMITATIONS to the lack of enforceability due to lack of consideration rule?
(a) The new promise needs not be explicit. A promise will normally be implied from an unqualified acknowledgement that the debt is owing, or from a part payment of the debt. (b) The implication of a promise from the acknowledgement or part payment is determinative (c) “I acknowledge that I owe you money, and I should pay it to you by al rights, but Ill never give you a cent” gives no cause of action to recover the money.
What is the Requirement of a writing in the exception—PROMISE TO PAY A DEBT BARRED BY THE STATUTE OF LIMITATIONS to the lack of enforceability due to lack of consideration rule?
(a) At common law a promise did not need to be in writing to be enforceable. (b) Most states have adopted special statues that provide that such a promise is not enforceable unless it is in writing OR a part payment has been made.
What is the affect of a New promise made before the statute of limitations has run in the exception—PROMISE TO PAY A DEBT BARRED BY THE STATUTE OF LIMITATIONS to the lack of enforceability due to lack of consideration rule?
(a) The statute will begin to run on the new promise from the date it is made, or the date of the acknowledgement or part payment.
What are the exceptions to the EXCEPTION—PROMISE TO PAY A DEBT DISCHARGED BY BANKRUPCTCY to the lack of enforceability due to lack of consideration rule? JXs?
(a) Most states allow enforceability only if it is direct (acknowledgement and part payment). (b) Most states do not require for this to be in writing.
Define: EXCEPTION—PROMISE TO PERFORM A VOIDABLE OBLIGATION to the lack of enforceability due to lack of consideration rule?
(a) This kind of promise (known as a ratification) is enforceable despite the absence of new consideration, as long as the new promise is not subject to the same privilege or defenses as the original obligation. (b) Ex: If someone promised to perform a contract that he had no consideration for (because of fraud or infancy—he was underage) when he could have consideration, the promise is enforceable.
Define: AVOIDANCE
(a) An Avoidance is a statement by a person who has a right to void a contract that he is exercising that right.
When does someone have the loss of the right of AVOIDANCE?
(a) A [unreasonable] delay in exercising the right (b) When someone does not have consideration because of his specific state, such as Infancy, Incomptency or Fraud.
Describe the JXs for: EXCEPTION—PROMISE TO PAY MORAL OBLIGATION ARISING OUT OF PAST ECONOMIC BENEFIT TO PROMISOR to the lack of enforceability due to lack of consideration rule? OLD VIEW, MODERN RULE, RESTATEMENT, STATE STATUTES.
(a) The cases are split (b) OLD VIEW: A moral obligation is not consideration. Ex: if a moral obligation incurred through past events is generally not sufficient consideration for an express promise. Like if I care for your sick son and you promise to pay me money after you hear of it. (c) MODERN RULE: to enforce promises based on the moral obligation, at least up to the value of the benefit conferred. (i) Ex: P falls with a block to save D’s life. D promises to support P for life. The moral act was consideration. (d) RESTATEMENT: a promise made in recognition of a benefit previously received by the promisor from the promise is binding to the extent necessary to prevent injustice, but it is not binding to the extent that its value is disproportiate to the benefit. (e) STATE STATUTES: Comparable rules to the restatements are adopted in the states.
Describe the how BENEFITS CONFERRED GRATUITOUSLY affects: EXCEPTION—PROMISE TO PAY MORAL OBLIGATION ARISING OUT OF PAST ECONOMIC BENEFIT TO PROMISOR to the lack of enforceability due to lack of consideration rule?
(a) It will not be enforced if it was a gift. There is no moral obligation to repay the value of a gift. (b) Ex: A’s wealthy sister B gives A a new car. Later A promises to pay B the value of the car. Unenforceable.
Describe the how PROMISE BASED ON EXPENSE INCURRED BY PROMISEE affects: EXCEPTION—PROMISE TO PAY MORAL OBLIGATION ARISING OUT OF PAST ECONOMIC BENEFIT TO PROMISOR to the lack of enforceability due to lack of consideration rule?
(a) A promise based on a moral (as opposed to a legal) obligation normally will not be enforced where the promisor did not receive a direct economic benefit, even if the promise incurred expenses. (b) Some states have statutes that enforce this though.