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32 Cards in this Set

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Under the modern trend, can a pre-existing duty serve as consideration?
Only if the pre-existing duty is owed to the promisor.
Past or moral consideration is valid where?
Where the SOL has run on a K and there's a new promise to uphold some or all of obligation under the original K.
what does a cancelation clause for a K require into order to avoid being illusionary?
a condition to the cancellation.
When the delegate promises that he will perform the duty delegated and the promise is supported by consideration, what presumption occurs?
The nondelegating party becomes a 3rd party beneficiary of the assumption agreement and can sue (a) the delegate who assumed the duty or (b) the delegator who remains liabile for the K
Name of action for upaid seller to get goods back?
Reclamation
What are the requirements for reclamation?
1. buyer must have been insolvent at time it received goods
2. seller demand return of goods w/in 10 days of receipt (reasonable time if b/f delivery there had been an express representation of solvency by buyer)
3. buyer still has goods at time of demand
What is the goal of expectation?
To return P to position would have been in had K been performed
What is the goal of restition?
To put D in position would have been in had K never been formed
What is the goal of reliance?
To put P in position would have been in had K never been formed
Under the UCC, what are the two variables that determine K damages of putting innocent party in position had K been performed
1. who breached
2. who has the goods?
Expectation damages where:
seller breaches, buyer keeps the goods
[FMV if perfect] - [fair market value as delivered]
Expectation damages where:
seller breaches, seller keeps the goods
[FMV at time of discovery of breach] - K price

OR

[replacement price] - [contract price]
Expectation damages where:
buyer breaches, buyer has goods
K price
Expectation damages where: buyer breaches, seller has goods
[K price] - [market price at time and place of delivery]

OR

[K price] - [resale price]

AND sometimes provable lost profits
Fact pattern:
1. sale of something as regular inventory - seller has many
2. there is a K, followed by breach, followed by resale

What is the recovery?
lost profits of seller! But tough to compute
What are incidental damages?

Are they recoverable?
= costs incurred in dealing with a breach

yes, always recoverable!
What are coincidental damages?

Are they recoverable?
"special" damages

If it's a loss that only P would sustain --> consequential damages awarded

If it's a loss that anyone would sustain --> no conseq. damages available
No recovery for damages that could have been avoided ____ on P.
without undue burden
What to always include in CA essay about damages?
"State damages must be proved with a matter of CERTAINTY."
Can terms of a K prohibit assignment of the delegation of assignor's duties?

Of the asignor's right to payment?
Yes.

No.
what does shipment of nonconforming goods represent where seller does not notify goods that they are an accomodation?
acceptance and a breach
Who bears risk of loss when...
1. K authorizes or requires seller to ship goods by carrier but does not explicitly require him to deliver them to a particular location?

2. and when goods are also so defective that buyer can reject?
1. risk of loss passes to the buyer when the goods are delivered to the carrier.

2. risk of loss remains with seller until buyer accepts the goods or the defect is cured
Where a duty is delegated under a K, the obligee can enforce the delegate to perform when what occurs? Yes, hard question
the delegate's promise to perform is supported by consideration; this crates a K and the obligee becomes a third party beneficiary of that K, allowing the obligee to enforce the K
Is there consideration for a K modification where a promisor promises to do the same he would have done under the original K?

Is the modified K enforceable?
No. The modification is unenforceable.
What options does a buyer have who receives nonconforming goods?
1. accept them all
2. reject them all
3. accept any commercial unit (those meeting K specifications) and reject the rest
what does an offer require under common law?
1. a promise, undertaking, or commitment to enter into a K
2. certainty and definiteness in the essential terms
3. communication to the offeree
When is a breach minor?
a breach is minor if the non-breaching party obtains the substantial benefit of her bargain despite the defective performance
What are the remedies when a breach is minor?
the non-breaching party must still fulfill its promise, subject to any damages claimed from the minor breach
What must recovery of damages always be?
certain and not speculative!
What is necessary for an offer?
1. MANIFESTATION of a present intent to K demonstrated by a promise, undertaking or commitment
2. definite and certain TERMS
3. COMMUNICATED to an identified OFFEREE
how does an offer terminate by law?
1. death or insanity of either party
2. destruction of subject matter
3. supervening illegality
What is unconcionability?

When is it tested?

When does it apply?
A K may be voidable where the clauses are so one-sided as to be uncosincounable.

It is tested at the time that the K was made.

Unconsiounability applies where one party has substantially superior bargaining power.