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43 Cards in this Set
- Front
- Back
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Is an agreement a contract?
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No. An agreement is a promise
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How does the restatement define the term Contract
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"a promise or a set of promises for which when there is a breach the law gives a remedy, or the performance of which in some way the law recognizes as a duty"
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Specific perfomance
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Remedy which forces the performance of a contract or contract term
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What is the law's interest in enforcing contracts?
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Prevent people from taking things into their own hands
Provide a semblance of order Encourage people to make contracts Provide incentive to fulfill promises Morality |
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HYPO:A builder says that he will build by a certain date. He honestly believes he can do it within that timeframe when the contract is made, but finds he is unable to fulfill it through no fault of his own. Does it matter that there was no fault or blame?
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No he's still liable.
In contracts fault or blame is not required. |
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Can you be awarded punative damages for a breach of contract?
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Very rarely, b/c the interest is in remedy not punishment.
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What are the 3 interests?
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Expectation
Reliance Restitution |
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Hypo: Is there a breach if a congressman runs for election saying he will vote one way on a bill then doesn’t once in office?
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No, there is an expectaton that politicians lie to get elected
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What are goods?
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UCC §2-105 Goods are all things that are movable at the time of identification to the contract for sale…
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Is realty (real estate) a good?
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No
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Is electricity a good?
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Yes because it is moveable at the time of sale
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What types of things are not covered by the UCC?
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Realty is not covered
Money is not covered Securities are not covered Things in action/legal claims not covered Services not covered Wills, employment contracts not covered |
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Are employment contracts covered by the UCC?
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No
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Are wills covered by the UCC
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No
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Do you have to be a merchant to be covered by the UCC?
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NO
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In order to be covered by the UCC what must the value of a good be?
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no value is required
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In order to be covered by the statute of frauds what must the value of the good be?
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$500
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What is the majority rule for determining whether something is a good or a service?
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Predominant factor test
Is it predominantly a good or a service? |
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Gravamen test
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which part caused the injury?
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In order to be covered by the UCC what must the value of a good be?
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no value is required
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In order to be covered by the statute of frauds what must the value of the good be?
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$500
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What is the majority rule for determining whether something is a good or a service?
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Predominant factor test
Is it predominantly a good or a service? |
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Gravamen test
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which part caused the injury?
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Additional term
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A term which is completely new, no prior discussion, which was added to the acceptance/confirmation
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different term
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A term that has already been discussed but has been changed in the acceptance/confirmation
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§ 2-207 (1) A ____ & _____ expression of ______ or a written _______ which is sent within a ______ time operates as an acceptance even though it states terms _______ to or _______ from those offered or agreed upon, unless acceptance is ________ made ______ on assent to the ______ or _______ terms.
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Definite, seasonable, acceptance, confirmation, reasonable, additional, different, expressly, conditional, additional, different
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What does “between merchants” mean (UCC)?
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§ 2-104 defines “between merchants” any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants.
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How does the UCC define merchant?
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A person (or agent/intermediary) who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction
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When might a party have precontractual liablity if negotiations fail.
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1. restitution for a benefit that one party conferred on another 2. misrepresentation
3. Promissory estoppel |
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What issue did Red Owl deal with?
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reliance on promissory estoppel
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Expectation damages
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what you would have made had the contract been completed
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Reliance damages
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what you've expended in reliance on the promise
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Restitution damages
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Pay you back what they benefited from
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Difference between reliance & restitution
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in restitution the other party has benefited. In the restitution it is just what they
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How does the restatement define agreement?
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an agreement is a manefetation of mutual assent on the part of 2 or more persons
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According to the restatement how may a promise be made?
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oral, written or may be inferred wholly or partly from conduct
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What is needed for performance to serve as a valid acceptance
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It must be in such a way that a reasonable offeror would be put on notice that the offer has been accepted.
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An option made by a merchants must be ...
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in writting
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An option made by consumers must have...
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consideration
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Mailbox rule
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: an acceptance is valid upon dispatch even before it is delivered or if it is never delivered; Even if it has not or does not come to the offerors attention.
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Which section of the UCC deals with implied warranty of merchantablity?
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§ 2-314
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What kind of transaction is subject to the UCC's implied warranty of merchantablity? and what types of sellers?
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a sale of good, by seller who is a merchant with respect to that kind of good
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Which section of the UCC does away with a lot of the formal requirements of contracts?
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section 2-204
a sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract |
