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401 Cards in this Set

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gotta dime mac? yes I do! contract?
under objective test it is likely B offered to exchange the die but A placed no consideration into the bargain and did not accept
contracts approach - three big areas
formation, performance, remedies
types of contracts
unilateral - one accept by performance, bilateral mutual promises to perform, express - oral or written words, implied in fact -conduct, implied in law - prevent unjust enrichment, dividisible , entire
diagram
A -> B
<-
M? M?
applicable law
CL or UCC
formation - 3 areas
mutual assent, consideration, defenses
formation vs. modification - UCC 2-209
a
what kind of K triggers CL
services, real P, sale of intangible Person P i.e. securities
what kind of K triggers UCC
sale of goods -article 2
sale of goods for UCC
tangible movable personal P
merchant definition
deals regularly in goods involve or holds themselves out as having special skill or knowledge as to those goods
mutual assent 3 steps
offer made, offer still open , acceptance
mutual assent - offer made 3 elements
requisite intent, content that is communicated
mutual assent - offer made - vs. invitation to bid
reasonable intent made a real invitation to bid - must be serious - trade bike for coffee when cold
mutual assent - content - 3 elements
express, gap rules, course of history
mutual assent - offer made - standard
would reasonable person think there is MA
mutual assent - invitation to bid an offer?
invitation to bid may invite offer
mutual assent content - if essential terms are not in fact pattern
1) consider history to make terms definite course of dealing in this K, dealing between parties in different K, trade usage of custom in industry absent exclusion of custom
mutual assent - content - ambiguous terms - history
course of dealing in this contract between these parties
mutual assent content - if essential terms are not in fact pattern - gap rules - area where they can apply
parties, subject matter, GF requirements and uotput Ks, price CL/ vs UCC and other terms
mutual assent content - if essential terms are not in fact pattern - gap rules - which is more strict CL or UCC
CL because UCC favors formation
mutual assent content - if essential terms are not in fact pattern - gap rules - subject matter and quantity
UCC an Cl are strict
mutual assent content - if essential terms are not in fact pattern - gap rules - out and requirements
promise to supply buyer with all requirements for specific duration and out the buyer promises to buy entire out from seller for specified duration
mutual assent content - if essential terms are not in fact pattern - gap rules - out and requirements - GF standard
no disproportionate tender
utual assent content - if essential terms are not in fact pattern - gap rules - price Cl and UCC
Cl strict UCC can gap fill reasonable , objective standard, agree to agree UCC has mad CL less strict
utual assent content - if essential terms are not in fact pattern - gap rules - time mode delivery place etc
filled under CL and UCC
mutual assent communicated
creates power of acceptance by being communicated and received by offeree
mutual assent communicated
cross offers with identical terms ?
creates power of acceptance on reciept
mutual assent offer still open 2 main categories
kind of termination, kind of offer
mutual assent offer termination 3 ways
own terms, events, acts of parties
mutual assent offer termination
events
lapse of time, death and destruction, ensuing illegality
mutual assent offer termination death of offeror
yes except estate may have to perform modernly
mutual assent offer termination
destruction
of subject matters terminates offer
mutual assent offer termination
act of parties ends offer 3 areas
rejection, repudication, revocation
mutual assent offer termination
acts of parties - who rejects
offeree
mutual assent offer termination
acts of parties 2 types of rejection
express/ implied rejection and true counteroffer
mutual assent offer termination
acts of parties rejection
offeree can reject - once rejected offer is forever dead
J1 A offers to ell car J2 B rejects J3 withdraws rejection
1) is there a look for counter
no
mutual assent offer termination
acts of parties revocation - learns of conduct by offeror inconsistent with offer
offer is revoked
mutual assent offer termination
acts of parties
would you consider a different price - terminate ?
no that is a mere inquiry
mutual assent offer termination
acts of parties who can revoke
offeror is master of offer
mutual assent offer termination
acts of parties types of revocation
direct or indirect
mutual assent offer termination
acts of parties indirect revocation
action inconsistent with offer thoutat the offeree learns ab
mutual assent offer still open - kinds of offers
option, firm Ucc, supported by DR plain
mutual assent offer still open
irrevocable - option
offer held open for specified duration supported by consideration - irrevocable for duration
mutual assent offer still open
irrevocable - firm UCC requirements
1) sale of goods 2) merchant offeror 3) signed written offer 4) promise to hold open - time reasonable not to exceed 90 days
mutual assent offer still open
irrevocable option if only a recital of consideration but not actual consideration
yes majority allows mere recital of consideration
mutual assent offer still open
irrevocable options mailbox rule applicable
no option acceptance must be received not dispatched
mutual assent offer till open
irrevocable - option - detrimentatl reliance on rejection terminates option?
yes
mutual assent offer still open
irrevocable UCC firm offer 2-205 effect
irrevocable for period stated or reasonable period maximum 90 days
mutual assent offer still open
irrevocable because supported through DR - effect -
irrevocable for reas time in Maj
mutual assent offer still open
irrevocable UCC firm offer 2-205 effect if not revoked in 90 day period does K automatically revoke at 90 days
no must be explicitly revoked
mutual assent offer still open
irrevocable because supported through DR - effect of mere preparation
does not create irrevocability
mutual assent offer still open
irrevocable because supported through DR - effect real DR - subcntractor facts - drennan MAJ?
irrevocable MAJ yes - forms contract min no deal
mutual assent offer still open
irrevocable because unilateral K
becomes irrevocable at performance
MA acceptance 3 things to think about
capacity, communicated and unequivacable
MA acceptance - capacity - eligible offeree
capacity is created in offeree except option Ks can be assigned
MA acceptance public offer - cop
pre existing duty
MA acceptance communicated CL 2 types
bilateral unilateral
MA acceptance communicated CL UL begins performance
irrevocable for reas time
MA acceptance communicated CL UL mere preparation vs. start of performance
does not make irrevocable
MA acceptance communicated UCC BL UL
abolishes BL UL distinction - any acceptance like shipment with notification within reas tie
MA acceptance communicated UCC 2-206 shipment of non-conforming goods
radical departure from mirror image rule - is acceptance but also breach
MA acceptance communicated UCC 2-206 shipment of non-conforming goods - buyer's options
accept or reject all or part in commercially reas units
MA acceptance communicated UCC 2-206 shipment of non-conforming goods - accomdation
counter offer not a breach
J1 A wire B a dealer please ship me 12 dozen 12 oz bottles of water

J2 B wries back promise to ship before COB on J4 on J3 A calls B to revoke - can offer for an act be accepted by promise
yes acceptance by promise in UCC even if bargain was for performance A cannot revoke
J1 A wire B a dealer please ship me 12 dozen 12 oz bottles of water
B did not wire A and shipped non-conforming goods CL and UCC
no acceptance under Cl but UCC yes
J1 A wire B a dealer please ship me 12 dozen 12 oz bottles of water
B ships wrong brand of water with notice of accommodation
can A reject and sue
a counter offer - can be rejected but no damges
J1 A wire B a dealer please ship me 12 dozen 12 oz bottles of water
B ships wrong brand of water
can A reject and sue
under Cl no but can under UCC accept or reject all o part in any commercial units and sue
J1 A wire B a dealer please promise to ship me 12 dozen 12 oz bottles of water
B ships - can offer offer f promise be accepted by act
UCC has to notify A and ship within reas time - but yes
MA acceptance - unequivocal
CL UCC
Cl mirror image rule non mirror is counter offer , UCC - definie and seasonal and terms - battle of forms
MA acceptance - unequivocal UCC - non mirror image
K is formed under definite and seasonal even if terms vary
MA acceptance - unequivocal
UCC varying terms acceptance
lay persons 1 or both
K formed on original terms in offer and new terms are proposals
MA acceptance - unequivocal
UCC varying terms acceptance
both merchants
K is formed on new terms unless 1) ironclad offer=formed on orig terms or 2) objection within reas time=formed on orig terms or 3) material alteration=formed on orig terms 10%or more price - disclaimer- liquidated damages
formation moves - when complete
offer
rejection
revocation maj and min
acceptance
offer -> receipt
rejection -> receipt
revocation maj -> receipt
revocation min -> dispatch
acceptance -> dispatch
knock-out rule definition
parties conduct indicates intent to form - implied in fact no expression of acceptance - knock out determines terms - terms on which forms agree are terms
acceptance followed by rejection - reject overtakes acceptance K?
yes
minority revocation effective on dispatch - against an irrevocable offer
watch for this
rejection followed by acceptance K?
mailbox rule falls out
whichever arrives 1st determines whether K
revocation sent after acceptance K?
yes acceptance is effective on dispatch
revocation sent prior to acceptance K? maj min
revocation is effective on dispatch in min so revocation kills offer but MAJ acceptance on dispatch of acceptance
MA - consideration 3 types
bargained for exchange,
-><-
PE,
|
A<- B
restitution
A->B
MA - consideration BFE 3 areas
when , what, why - first great expectation that is protected
MA - consideration BFE - when - past or moral LC and new rule
past - not valid must be present at CL because SOL but modern rule may be enforceable or moral - gratuitous promises at CL no good but modern rule can enforce moral promise to extent to avoid unjust enrichment
MA - consideration BFE -
what
pre existing duty , forbearance to sue and illusory
MA - consideration BFE -
what - preexisting
if preexisiting duty then no consideration
MA - consideration BFE -
what 3rd P PROMISeR
A-><- B
|
C
tradition- no new consideration but modern rule allows enforcement
MA - consideration BFE -
what 3rd P PROMISeR - unilateral
since no contract until performance both promises can e enforced
MA - consideration BFE -
what - forbearance to sue
forbearance is valid consideration
trad reas GF belief is consideration
modern only GF belief is consideration
if obviously invalid forbearance - naked promise
MA - consideration BFE -
what - illusory
no because consideration must have real value - buy requirements is consideration but buy whatever she needs is illusory
MA - consideration BFE -
what - illusory - at will trad modern
trad no consideration but modern for goods implied Covenant of GF and fair dealing is enforceable
MA - consideration BFE -
what - illusory - with notice
notice makes an enforceable promise
MA - consideration BFE -
what - illusory - exclusive dealer
trad no promise to make definete undertaking but modern implied covenant of best efforts
MA - consideration BFE -
why - 2 issues
gifts subject to condition or disguised gift
MA - consideration BFE -
why - gifts subject to condition
negligible condition no benefit - not enforceable - PE? if no detrimental reliance - substantial - then no consideration
MA - consideration BFE -
why - disguised gift
court does not examine value of consideration - but a disguised gift is not a K - look to what motivated promise
MA - consideration PE 3 elements
B's promise, A's reasonble reliance, that avoids injustice
MA - consideration PE - consideration substitute
reasonable reliance
must be reasonable objective - jury decide what would
MA - consideration PE - consideration substitute
avoid injustice
out of pocket loss - reliance measure of damage
consideration restitution under QK
avoids unjust enrichment no consideration required
defenses to enforcement - formation 4 areas
capacity, public policy, fraud duress or mistake, writings
defenses to enforcement - formation capacity 3 types
minority, insanity, intoxication
defenses to enforcement - formation capacity - effect 2
void or voidable
defenses to enforcement - formation capacity exception
for necessities
defenses to enforcement - formation public policy
illegality or unconscionable
defenses to enforcement - formation public policy illegality
is or becomes illegal
defenses to enforcement - formation public policy unconscionable 2 elements
absence of meaningful choice an K terms unreasonably favorable
defenses to enforcement - formation fraud or duress
was not MA - not giving consent voluntarily
defenses to enforcement - formation mistake mutual
goes to essence of K is ground to rescind
defenses to enforcement - formation mistake unilateral
not a defense to enforcement unless reason to know and was unconscionable
defenses to enforcement - formation writings 2 issues
SOF and consider Parol Evidence
SOF - 3 elements
sale of RP, sale of goods => $500, one year rule, guarantee
SOF - FP
fee , easements, leases for more than 1 year - licenses are PP
SOF sale of RP enforceable w/o writing
yes part performance - possession and payments or improvements to RP
SOF - sale of RP estoppel or waiver
seller can waiver - reliance to buyer detriment
SOF UCC
2-201 sale of goods prices at $500 or more except custom goods specially manufactured not suitable for resale in ordinary course of bus and manufact party has made start
SOF - goods >=$500 paid for or shipped
exceptions to SOF
SOF intangible valued at $5,000 or more ?
is governed by SOF
SOF one year rule - measured
from time of formation through performance - SOF requires writing if cannot be completed
SOF - one year possible that could be performed in less than year SOF apply
no
does full performance extinguish SOF requirement
Yes
SOF guarantees for the debt of another
surety must be in writing -
SOF - guarantees for the debt of another main purpose exception?
if guarantor believes the main purpose is for his own economic benefit - oral enforceable
SOF - what is adequate writing
terms under CL more strict requires all essential terms

UCC memo indicates formation and quantity - adequate so long as signed

CL person to be charge must sign- letterhead etc

UCC - 2-201(2) 1 or both laypersons - party to be charged - letterhead rubber stamp
both merchants is one sends another that is suffcient to bind sender the recipient is also bound unless he objects in writing within 10 days of receipt
SOF essential terms at CL
parties, subject matter , quantity, price
SOF merchants - letters
both merchants if one sends another that is suffcient to bind sender the recipient is also bound unless he objects in writing within 10 days of receipt
SOF exceptions
part performance RP, full performance, main purpose -surety
SOF types of K
marriage, one year, RP, goods priced at >=$500, surety
Parol E rule
bars evidence of any prior or contemporaneous agreements that vary or contradict essential terms of integrate writing
Parol E K's covered - must have writing to start with
integrated K - not apply to oral , not apply to non integrated , face - what did parties intend
Parol E effects contradiction of
essential terms barred vs mere recital of fact - these can come in
Parol E effects can it supplement
partially integrated then ok completely integrated no
integrated K
did parties intend to be integrated - final and complete expression of their agreement
merger clause trad and modern
trad 4 corners moder court look deeper
what is parol evidence
extrinsic writing - oral or written - prior to or contemporaneous
consistent collateral agreement
different contract with separate consideration
Parol E exceptions no deal
to show no K duress, no consideration, oral condition - introduced no to show deal but to show there was no deal
Parol E interpretation of ambiguity
allowed as exception
Parol E for reformation?
yes - writing was inaccurate - scrivener's error
Parol E exception subsequent agreements that vary or contradict
not covered by SOF - modification
SOF exceptions
no deal, interpret deal, reformation, subsequent agreement
formation modification diagram
A-><-B then later A-><-B
formation modification requirements MA CL and UCC
CL yes
UCC yes
formation modification requirements consideration CL and UCC
CL yes
UCC no GF
formation modification requirements writing CL and UCC
CL no unless SOF even if K requires writing
UCC yes if Orig K then yes and if says Modified yes or SOF in UCC > $500
formation modification requirements novation
A and B agree new party C takes A place with B's assent
substitutes new party and or new performance for original ones
formation modification novation - discharge discarded party
yes
formation modification requirements accord and satisfaction
GF dispute over how much is owed - agreement to new amount is accord and performance paying new amount discharges both old and new obligations
performance diagram
por A->B pee
pee A<-B por
performance - conditions three step approach
type, satisfied, excused
performance - conditions - types 3
express, implied, constructive
big picture flow
formation
MA
Consideration
Defenses -> obligation to perform

PERFORMANCE
Conditions
Discharge -> Absolute duty

Breach -> remedy
K equation
ormation
MA
Consideration
Defenses -> obligation to perform

PERFORMANCE
Conditions
Discharge -> Absolute duty

Breach -> remedy
performance - conditions - types in time
precedent, concurrent , subsequent
performance
Conditions
express

Breach -> remedy
explicit language - provided that - on condition that - only if
performance - conditions
implied
no express langaue but from nature of agreement or relationship of parties courts imply - condition of good faith and fair dealing
performance - conditions
constructive
court reads in to order time of performance - one party takes a long time - build house vs. payment - constructive condition precedent
performance
Conditions - covenant
arises in this area because courts tend to prefer covenant under ambiguity
performance - condition precedent
must be satisfied before duty flows
performance - condition - concurent
must be performed simultaneously
performance - condition - subsequent
must be satisfied after
what if no conditions that raise issue
move on to discharge
performance - condition - standard for satisfied pee - commercial
objective reas person standard
performance - condition - standard for satisfied 3rd p
accept is architect is satisfied- GF satisfied
performance - condition - standard for satisfied pee - personal
GF subjective - portrait
performance - condition - satisfied in bad faith
bad faith excuses condition
performance - condition - satisfied- time for payment
when store becomes profitable but never occurs - if ambiguous and forfeiture results - courts will call covenant that sets tie for payment - reas expected store to be profitable - did not assume risk
performance - condition - excused by 3
waiver/estoppel, breach, forfeiture
performance - condition - excused by waiver or estoppel
through conduct waived or detrimental reliance is excused
waiver for minor - DR for material - DR consideration substitute for modification
performance - condition - excused by breach prevention
prevention= BF interference with satisfaction - condition is satisfied
performance - condition - excused by forfieture
ambiguous becomes covenant and relief or breachor
performance - condition - excused by breach repudiation
if performance was condition repudiation satisfies condition then breach occur
performance discharge major categories
illegality, death, destruction, severe impracticability, commercial frustration
performance discharge define
changed circumstance that release or excuse parties from performance
performance discharge can it be partial
yes can be partial or complete
performance discharge standard
objective not subjective
performance discharge death commercial
does not discharge duty but estate must find substitute performance
performance discharge death personal
decedent was essential discharges duty
performance discharge impossibility standard
objective
performance discharge impossibility types
illegal, death, destruction
performance discharge illegal
objectively impossible so both parties dutydischarged
performance impossibility destruction land sale
land sale equitable Conv buyer risk vs. uniform vendor seller risk
performance impossibility destruction types
land sale, construction, service or repair, goods in transit, crops, means of production
performance impossibility destruction construction
builder until building complete
performance impossibility destruction general
who bears risk of loss
performance impossibility destruction service/repair
existing building owner risk
performance impossibility destruction goods in transit
FOB Seller = Buyer risk - buyer insures
FOB Buyer = Seller Risk seller insures = destination K
performance impossibility destruction crops
partial = Seller partial discharge , complete = complete, normally objective unless particular means is basic assumption of K
performance impossibility destruction means of production
normally objective unless particular means is basic assumption of K then dischrge
performance impossibility sever impracticality - 3 points
extremely more burdensome, Claimant did not assume risk and mrket fluc not sufficient
performance severe impracticalbility
extreme burden discharges where German steam ship could not sale to Britain during WWI - increased burden
performance severe impracticalbility - suez canal
war closed canal had to o around cape of good hope increased cost burden did not discharge
performance severe impracticalbility -market flucuations
did not discharge
performance commercial frustration discharge
total frustration of principle purpose of the contract - makes what the party gets worthless - coronation suites then king got sick so discharged
what happens if there are no discharges of obligation?
move on to ripened absolute duty to perform
performance breach time line
prospective, present, relief
performance breach prospective types
AR - voluntary disableent
performance breach AR
through words or conduct convey an unequivocal intent not to perform
performance breach AR - expressions of doubt
do not rise to level of AR - must be unequivocal
performance breach AR - assurances
non-repudiating party may seek assurances if they do not get written adequate assurances within reas time or 30 days max then breach
performance breach AR - less than repudiation - expressions of doubt
assurances
performance breach AR - effects - duty
excuses conditions of B because non-performance is breach and discharges duty of A
performance breach AR - mitigate
non-breachor has affirmative duty to mitigate by making substitute rrangements
performance breach AR - options of non-breachor
sue now not wait for time of contract or urge urge retraction of repudiation - if A relies on breach by substituting cuts off breachor's power of retraction
performance breach AR - options of non-breachor - must aggrieved party give notice of relying on breach and cutting off power of retraction
only in min of Js
performance breach AR - options of non-breachor - wait to sue
may wait until time of performance
performance breach AR - 3 options
sue now and terminate, urge retraction or sue later
performance breach PB present breach 2 issue areas
minor?, or material?
performance breach PB minor? CL and UCC
CL - minor breach does not allow A to suspend performance but may recover damages
UCC - perfect tender rule 2-601
if goods in any way do not conform or manner of tender does not conform it is a breach
performance breach PB minor?
perfect tender 3 issues
1) right to cure - if there is time buyer must allow seller right to cure 2) installment K 3) rejection after acceptance
performance breach PB minor?
perfect tender installment Ks
buyer may reject only if breach impairs value of entire K - if seller gives adequate assurances of cure the buyer must accept non-conforming goods
performance breach PB minor?
perfect tender - rejection after acceptance
tender substantially affect the value of goods or defect was not reasonably discoverable or buyer was lulled by seller's assurances then buyer may reject- not bound by earlier acceptance
performance breach PB minor?
when is breach material
deprives A of expected benefit, degree of wrong, compensable in damages
performance breach PB minor?
amount of performance
minor = already substantially performed material = not
performance breach PB material? 3 effects
A may suspend, give B time to cure unless in maj Breach was willful, damages
performance breach PB material? time to cure
if willful then maj J allows A to terminate and get damages
performance breach PB material? damages
available at breach - proportionate to material or minor
performance breach - what happens when B fails to perform an absolute duty
seek remedies - move on to remedies in essay
performance breach - breachor's rights 3
minor where B has substantially performed B entitled to A's performance minus offset for damages, if material breach then B may be given time to cure , if total breach divisible K B can be paid for part performance and non-div K restitution maj even willful gets value of benefit conferred minus damages min willful breachor gets no restitution
relief for breachor minor bach
minor where B has substantially performed B entitled to A's performance minus offset for damages
relief for breachor material breach
if material breach then B may be given time to cure ,
relief for breachor - total breach
if total breach divisible K B can be paid for part performance and non-div K restitution maj even willful gets value of benefit conferred minus damages min willful breachor gets no restitution
3rd p K - 3rd p por
A-><-B
|
C - no consideration from C so promise is not enforceable
3rd p K - guarantor
A-><-B<-C = SOF problem - if B defaults C steps in - requires writing except main purpose exception
3rd p K - 3rd P beneficiary
A-><-----B
|
C<-B
3rd p K - assignment rights
A-><-B
|
C<-B
3rd p K - delegation duties
C->B
"
|
A <-B
3rd p K -diagram meaning of -> and ---->
A->= performance and promise
<---- = promise likely to C
3rd p K - formation of A-B deal 3 steps
MA, consideration, defenses
3rd p K - timing K formed
from the beginning- time K was formed C was intended to benefit from K and was in the contemplation of A and B
3rd p K - 3d P Beneficiary - split promise - component of 3rd p bene K
B promises to A but B's performance runs to C
3rd p K - label for parties A B C
A pee, B por, 3d Pbeni =C
3rd p K - C intended Beni
intended Beni has rights under K
3rd p K - C incidental Beni
has no rights and is only incidentally benefited under K
3rd p K - - 2 types of intended benis
creditor and donee
3rd p K - intended Beni creditor and donee 1st and 2nd restatement
lumped together in 2nd restatement
3rd p K - creditor Beni
pre-existing debt owed to C creditor of pee - performance of por B to C satisfies debt to C
3rd p K - beni donee
C gets gift - relative of A - intended as gift
3rd p K - performance A-B deal conditions, discharge or breach
underlying K performance
3rd p K - performance A-B deal
modify /rescind - depends on one of 2 states
vested or non-vested
3rd p K - performance A-B deal
modify /rescind how can C's rights vest modern before modification
modern = D/R , C's knowledge and assent vests and if C sues to enforce then C's right vest
3rd p K - performance A-B deal what to consider in A-B deal
conditions, discharge and breach
3rd p K - performance A-B deal
modify /rescind how C's rights vest traditional
creditor=D/R to vest
donee=vest at K formation
3rd p K - performance A-B deal
westing effect
vested rights get standing but non-vested do not
3rd p K - remedies A v B
pee v por - creditor and donee
creditor = A recovers either $ damages or SP
donee = no $ damages C is just getting gift nut mat get SP or restitution
3rd p K - remedies C v A
3rd P beni v pee
creitor and donee
creditor = C can sue on original debt
donee = no suit against pee because it was only gift
3rd p K - remedies C v B
3rd p beni v por vesting and B's defenses B v C and A v C
vesting = C rights need to have vested and bringing suit vests

B's defenses under
B v C C stands in shoes of A
yes B can raise defenses like breach -any defenses

A v C SOL, no B's defenses do not include A v C defenses
3rd p beni - A agrees to repair B's roof B agrees to pay A son C $5,000 diagram
A->B B---->A
B->C
at formation typical 3rd p K
A pee B por C intended beni
donee - gift
3rd p beni - A repairs roof as promised B refuses to pay C can C sue
bringing suit vests rights and 3rd p B can sue
3rd p beni - if A buys work supplies from Cody doe cody have rights under A-B deal
no because cody is incidental B
3rd p beni - before commencement of wok, A and B change minds and mutually rescind - C finds out about original deal can he enforce and demand $5,000 from B
no because C's rights never vested
3rd p beni - before A commences repair A breaches, and C in contemplation of getting $5,000 bought drum set on credit - can C enforce B's Promise to A to pay C $5,000
C D/R so rights vested and has direct COA against por
3rd p beni - before A commences repair A breaches, and C in contemplation of getting $5,000 bought drum set on credit - can C enforce B's Promise to A to pay C $5,000

B's defenses
because A breached B has right to not perform and because C stands in A's shoes K breached no performance - C loses
3rd p beni - A repairs as promised B refuses to pay C - can C get $5,000 from A
cannot sue because C was 3rd P B donee so no suit
3rd p beni - A repairs as promised B refuses to pay C - can C get $5,000 from A - does it make any difference that at formation A owed C $5,000
can sue because C was 3rd P B creditor so C can sue on the original debt
B offered C $5,000 if A repairs her roof C knew the deal and spent $ in reliance. if A does not repair can C sue B for $
no consideration - no contract because unilateral offer with no acceptance
assignments - difference between assignments and 3rd p beni
3rd p beni is contemplated at time of formation - assignments occur after formati
assignments - diagram
A-> B A <- B
|
C<-B
assignments - consideration required
no
assignments - label parties A B C
B=oor
A=oee & aor
C=aee
assignments - aor intent
intent to presently invest rights in C
assignments - K prohibits
power to A - courts favor so power to A still exists
so A is valid

but

right to A - A with no power is breach
assignment formation A-> C A
capacity increases oor's risk
may be invalid - output and requirements K not Aable because it varies duty
assignment formation A-> C A
capacity change duty
cannot change duty - outputs an requirements
assignment formation A-> C A
capacity increase risk
cannot increase risk such as insurance and loans not Aable
assignment formation A-> C A
capacity type of rights Aed
present and future
present can be Aed
future existing can be Aed
future expectancy - mere expectancy cannot be Aed - nothing to A unless established bus relationship between A an B
assignment
performance 3 issues
A-B deal, effect of assignment, revocation and priorities
assignment performance A-B deal 3 issues
conditions, discharge, breach
assignment
performance effect of A
B's O to A and B's O to C
B's O to A is extinguished and B's O to C is formed
assignment
performance effect of A notice required
yes
assignment
performance effect of A permission required ? unilateral change
no need to get permission
assignment
performance revocation and priorties 2 types
revocable or non-revocable
assignment
performance revocation and priorties revocable
revocable A aor retains right to revoke
assignment
performance revocation and priorties revocable 3 requirements
oral no writing and gratuitous - no consideration and no token chose like stock cert = freely revocable
assignment
performance revocation and priorities irrevocable
not meets 3 requirement for revocability
assignment
performance revocation and priorties revocable effect
last in time
assignment
performance revocation and priorties irrevocable effect
first in time wins no right to revoke
assignment
performance remedies A v B oee v oor
no - new duty to perform to C
assignment
performance remedies C v B aee v oor and B's defenses B v A
direct cause of action stands in shoes of A - defenses are same as B could have raised against A C and A are collapsed into one
assignment
performance remedies
C v A aee v aor key
was there consideration
assignment
performance remedies
C v A aee v aor C paid consideration
implied warranties - based on implied W
assignment
performance remedies
C v A aee v aor C paid noconsideration
no rights
assignment
performance remedies
C v A aee v aor C paid consideration -3 issues under implied warranties
right and defenses
any writings are genuine and enjoyment means no competing A
delegation 3 areas of concern
formation, performance, remedies
delegation - define
delegation of duties - burden is transfered
delegation - when does it happen
after A-B deal
delegation - formation 3 issues
formation, consideration, defenses
delegation - diagram
C->B A delegates duty to C
+
|
A-><-B
delegation - labels in A-C delegation
oee=B
oor=A dor=A
C=dee
delegation - formation - dee promise consideration required
with A
A provides Consideration through implied pormise to perform duties
delegation - formation - dee promise consideration required
w/o A
look for consideration or promise because it is required to complete delegation
delegation - formation - what duties are delegable - commercial K
can be delegated unless unique skills or talents - general contractor delegates to sub must supervise
delegation - formation - what duties are delegable - personal
non-delegable due to skill or reputation
delegation -performance - 3 issues
A-B deal, effect of delegation , effect of dee's performance
delegation -performance - A-B deal
look for conditions, discharge or breach
delegation -performance - effect of delegation invalid
B can ignore attempt at D and demand a performs - if A refuses A in breach
delegation -performance - effect of dee's performance satisfactory
discharges duties of A and C's duties
delegation -performance - effect of delegation valid
B must accept C's satisfactory performace
delegation -performance - effect of dee's performance unsatisfactory
gives rise to lawsuits - remedies
delegation -remedies
B v A oee v oor - delegation and novation
delegation= dor secondarily liable to B and C is primarily liable to B - B can sue A or C

novation express or implied then A cannot be sued
delegation -remedies
B v C
can d direct action because B stands in shoes of A and C has same defenses A had
delegation -remedies
A v C dor v dee
yes if A is still secondarily liable to B - no novation
delegation -remedies
B v A oee v oor - novation
C is in A shoes limit COA against A releases A - by express or implied conduct
A-C delegation creates what kind of K
3rd P K from C to B
formation A-C A
J1 A , famous photographer, agrred to shoot B climbing HD in exchange for promise to pay $10,000 , A incurred expsensesand borrowed $5,000 from . A agrees to pay C $5,000 by B. A and C notified B that in A she would pay A $5,000 and C $5,000
A-><-B
|
+
C<-B
J1 A , famous photographer, agrred to shoot B climbing HD in exchange for promise to pay $10,000 , A incurred expsensesand borrowed $5,000 from . A agrees to pay C $5,000 by B. A and C notified B that in A she would pay A $5,000 and C $5,000

B paid $5,000 to A and $5,000 to C can A get additional $5,000 from B
no - valid A extinguished duty to pay
1 A , famous photographer, agrred to shoot B climbing HD in exchange for promise to pay $10,000 , A incurred expsensesand borrowed $5,000 from . A agrees to pay C $5,000 by B. A and C notified B that in A she would pay A $5,000 and C $5,000

If A fails to show can C sue B and collect $5,000
yes but B has rights A had - A breached so C cannot sue
B raises defense of non-perfomance
1 A , famous photographer, agrred to shoot B climbing HD in exchange for promise to pay $10,000 , A incurred expsensesand borrowed $5,000 from . A agrees to pay C $5,000 by B. A and C notified B that in A she would pay A $5,000 and C $5,000

labels
A oee aor
B oor
C aee
J1 A , famous photographer, agrred to shoot B climbing HD in exchange for promise to pay $10,000 , A incurred expsensesand borrowed $5,000 from . A agrees to pay C $5,000 by B. A and C notified B that in A she would pay A $5,000 and C $5,000

can C sue A
implied Warranties so yes
delegation
A famous photographer agrees to shot B's climb
C is also photographer agrees to shoot B Climb in place of A
diagram
labels
A-><-B
B<-C
C<-A

A oor dor
B oee
C dee
delegation
A famous photographer agrees to shot B's climb
C is also photographer agrees to shoot B Climb in place of A

Must B accept C's performance
for a $5 passport photo and A is not famous
no because non-delegable duty and yes then delegable personal
delegation
A famous photographer agrees to shot B's climb
C is also photographer agrees to shoot B Climb in place of A

if B agrees to accept C's performance and C fails to show -who can B sue
both A (2nd)and C (1st) unless novation
remedies - 3 types
damages, restitution, injunction
remedies - damages 3 types
liquidated, expectation, reliance
remedies - damages liquidated
by clause non implied - must be valid to be enforced must not be punitive = void -
at formation so parties agree what $ would arise from breach
1) damages are damages at breach difficult to prove or uncertain 2) reas estimate of damages at formation
remedies - damages expectation - define
give A benefit of bargain in $
remedies - damages liquidated huge disparity between estimate and actual damages - trad and modern
may be invalid modernly but trad if formation est was reasonable then valid
before remedies what must be shown
breach
remedies - damages define
put aggrieved party in position they would have occupied if K had been performed - punitives may be available for T but not K
breach w/o damages what kind of remedy is available
nominal
remedies basic
foreseeable, certain , unavoidable-duty to mitigate
remedies - damages expectation - natural
hadley v baxendale - arise naturally
remedies - damages expectation - natural and consequential
hadley v baxendale - special knowledge
general measure of expectation damages
natural + consequential + incidental - cost avoided/loss avoided
remedies - expectation natural 2 categories
sale and services
remedies - expectation natural sale 2 categories
RP and goods
remedies - expectation natural RP seller breach
K-mkt sandy kofax s for seller
remedies - expectation natural goods - seller remedy
K-mkt or resale K-resale or lost volume
remedies - expectation natural RP buyer breach
Mkt-K billy martin b for buyer
remedies - expectation natural goods - buyer remedy
mkt at time of K-K
remedies - expectation natural goods - seller remedy lost volume
car dealer- infinite supply 1 buyer breaches - sell to 2nd buyer - seller gets lost profits from breached sale
remedies - expectation natural goods - buyer remedy cover
cover-K w/o unreas delay in GF
remedies - expectation natural goods - seller remedy - buyer breach identified goods - seller cannot sell
buyer has to buy - seller has o hold for buyer
remedies - expectation natural services 2 areas
employment and construction
remedies - expectation natural services - employment eer breach eee remedy
lost wages - earnings - mitigate seek substitute employment - look for tort punitives
remedies - expectation natural services - employment eee breach eer remedy
extra cost to substitute hire
remedies - expectation natural services - construction - builder's remedy
profit + costs - mitigate stop work when learn of owners breach - costs after not recoverable
remedies - expectation natural services - construction - owners remedy
cost of completion over K price but dimin in value is cost of completion is disproportionate- reeding pipe
remedies - consequential damages 2 requirements
foreseeable by breachor at time of formation
remedies - consequential damages - standard
objective - knew or should have known damages would arise - at formation
remedies - consequential damages 2 elements
foreseeable and certain
remedies - consequential damages - new bus - establish bus - certainty
new cannot be established with certainty but established likely can rules of thumb
remedies - consequential damages 2 elements
1) foreseeable at time of formation by bor 2) certain
remedies - reliance damages
cannot get full measure - backup out of pocket loss
remedies - reliance damages 2 circumstances to look out for
1) no consideration - PE may spend $ 2) expectation damages are too uncertain
protected K interests - diagram expectation
A-> <-XB benefit of bargain in $
protected K interests - diagram
reliance
X
|
A ----->B
B<-A
A D/R out of pocket loss $
protected K interests - diagram restitution
A-X>B
A<----B

avoid unjust enrichment - B no return performance - restore to A the value of the benefit A conferred on B
remedies - restitution 2 issues
grounds, measure of recovery
remedies - restitution
mistake breach and unenforceable K
remedies - restitution
grounds mistake
A confers B through mistake so court should return
remedies - restitution
grounds breach
breachor and breachee both have rights
remedies - restitution
grounds unenforceable K
down payment on house in K that later fails
remedies - restitution
measure of recovery 2 categories
breach and unenforceable K - down
remedies - restitution
measure of recovery - breach
aggrieved party
value conferred to B - often $ deposit but non-money then cost avoided that is what breachor would have spent to get benefit - disgorgement
remedies - restitution
measure of recovery - breach
breachor
value benefit conferred - damages except min willful breach nada but min vlue conferred - damages
remedies - restitution
measure of recovery - unenforceable K - goods and services
goods specific value
services reas value
specific restitution
remedy for unenforceable K subject matter goods
quantum meruit
reas value of services in restitution unenforceable K
remedies - injunction 3 categories
liability theory, special requirements, defenses
remedies - injunction define
make A whole - benefit of bargain in performance - court compels B to perform - equitable remedy
remedies - injunction - liability theory - formation
proper formation - higher standard for SP must be definite and certain - K to build 1st class theater too vague
how enforce SP order
contempt
remedies - injunction - liability theory - performance
marketable title, ToE, aee's note, Abatement
remedies - injunction - liability theory - special requirements 3
inadequate legal remedy, feasible decree, mutuality of remedy
remedies - injunction - SP - special circumstances
inadequate legal remedy - sale and personal
RP sale land is unique so SP is favored - $ not adequate,
PP sale usually $ damages are adequate except unique art book etc
remedies - injunction - Sp - special circumstances -feasible decree
jurisdictional problem - order in other state RP
remedies - injunction - SP special circumstances
inadequate legal remedy - personal services
usually $ damages are adequate except unique skills, talents famous etc
remedies - injunction - lSP - special circumstances
inadequate legal remedy - sale of goods UCC 2-709 and 2-710
look them up - SP appropriate - identified goods
remedies - injunction - SP - special circumstances
feasible decree requirements
jurisdiction
personal J over party ordered to perform, or in rem J over land
remedies - injunction - SP - special circumstances
feasible decree requirements
supervision - construction trad and modern
trad - too hard for court to compel
modern - less reluctant supervision can be overcome
special circumstances
feasible decree requirements
supervision - personal services affirmative or enforce negative covenant
no affirmative - involuntary servitude - hostile environment

enforce negative covenant - cannot compete court may enforce express or implied limited by eee cannot make a living
remedies injunction SP mutuality of remedy trad
trad turn tables is strict mutuality

for A to get P from B B must be able to get P from A
remedies injunction SP mutuality of remedy modern
old rule relaxed security for performance
A must show their own performance has been substantially rendered or can be scures
remedies injunction SP
recission and reformation difference
recission no valid bargain - termination
reformation valid bargain - redo writing to represent bargain
remedies injunction SP recission grounds 2
misrepresentation or mistake
remedies injunction SP defense 2 types
defense to enforcement ad equitable
remedies injunction SP defenses K SOF
land sale valid writing required or part performance through payments or improvements
remedies injunction SP defenses equitable 3
laches unfairness or BFP
remedies injunction SP defenses equitable laches
unreas delay by A in asserting rights that prejudiced B SOL is absolute bar but laches unreas delay could be shorter - turns on reasonableness
remedies injunction SP defenses equitable unfairness 3
1) unclean hands A's conduct BF?, hardship inadequate consideration and A in superior bargaining position, misrepresentation or mistake
remedies injunction SP defenses equitable BFP
BFP - in GF paid $ breachor has sold land or unique chattel to BFP cannot force to SP - cuts off equity of A
remedies - injunction recission - grounds 2
1) mistake or 2) misrepresentation
remedies - injunction recission - grounds misrepresentation 3 issues
type, culpability, materiality/ relaince
remedies - injunction recission - grounds misrepresentation type
fact = express oral or written misrepresentation or
silent = active concealment w confidential relationship
remedies - injunction recission - grounds misrepresentation culpability 2 types
negligent or intentional
remedies - injunction recission grounds misrepresentation opinion
generally not but could be if either expert or confidential relationship
remedies - injunction recission grounds misrepresentation culpability negligent or intentional where to sue
election to sue in K or tort cannot do both
remedies - injunction recission grounds misrepresentation culpability inocent
recission only
remedies - injunction recission grounds misrepresentation culpability materiality and relaince
reas person would agree it is material and justified relaince are grounds for recission
remedies - injunction rescission grounds mistake 2 types
mutual and unilateral
remedies - injunction rescission grounds mistake mutual
both parties mistaken as to essential terms of K and either P can seek rescission and restitution
remedies - injunction rescission grounds mistake unilateral maj and min
relief may not be grant except MAJ non-mistaken party knows or should have known of mistake and
MIN does hardship out weigh expectation
remedies - injunction rescission grounds mistake materiality basic assumption
1) goes to essence of subject matter but not just value or quality - collateral value or quality
2) no assumption of risk of error
remedies - injunction rescission - reformation grounds 2 requirements
1) prior agreement 2) error in writing either mistake or fraud
remedies - injunction rescission - reformation - defense good
good laches, unclean hands, election of remedies and estoppel = prevent reformation or rescission
remedies - injunction rescission - reformation - defense bad
negligence and Parol E - will not prevent rescission or reformatin
remedies - injunction rescission - reformation - defense good election of remedies
K first if lose then sue in tort but tort first deems K affirmed so cannot then sue for rescission of K
remedies - injunction rescission - reformation - defense good - estoppel
if A discovers ground for rescission but indicates intention through words or conduct to affirm K then they are estopped to rescind
K defense - rescission or reformation is negligence a defense
no
can Parl E be admitted in rescission or reformation
yes the rule is no bar