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;
34 Cards in this Set
- Front
- Back
|
What is the effect of an Accord? |
It suspends a party's obligations under the prior agreement until that them when the accord is either satisfied or not |
|
|
What gives rise to an anticipatory breach/repudiation? |
A clear statement of an intent not to perform |
|
|
Rule re: breach of personal services contract due to sickness or injury |
In a personal services contract, if you are too sick/injured to do the job, you will be excused for that period of time and will not be liable for damages unless the contract provides otherwise |
|
|
What is a Condition Precedent? |
An act or even that must occur first before a party is under a duty to perform |
|
|
When is a Liquidated Damages provision permited in a contract? |
(1) at the time of entering into the contract, damages are difficult to ascertain, and
(2) the provision must be a reasonable forecast of compensatory damages |
|
|
Basic principle of contract damages? |
To place the nonbreaching party in the situation she would have been in had the contract been completed |
|
|
What is the standard remedy for a nonbreaching seller's remedy under UCC Art. 2 |
Contract Price - Resale Price |
|
|
Remedy for a Lost-Volume Seller under UCC Art. 2? |
Lost profits |
|
|
A seller who __________ can enforce an oral contract for the sale of real property. |
Conveys the property to the buyer |
|
|
In a contract for a sale of goods priced at $500 or more, if the goods are _________ or __________, the contract will be enforced even if there is no writing. |
Received and accepted; paid for |
|
|
Under the common law Parol Evidence Rule, a completely integrated writing may not be contradicted or supplemented. A partially integrated writing may: |
Not be contradicted but may be supplemented by proving consistent additional terms |
|
|
What does it mean if a term is "collateral" to a written agreemtn? |
The term is related to the subject matter of the agreement, but not part of the primary purpose |
|
|
A condition __________ is one that must occur before the duty of performance will arise; the occurrence of a condition __________ will cut off an already existing duty of performance. |
Precedent; Subsequent |
|
|
How can a repudiating party retract an anticipatory repudiation? |
A repudiating party may at any time before his next performance is due withdraw his repudiation unless the other party has canceled, materially changed her position in reliance on the repudiation, or otherwise indicated that she considers the repudiation final. Withdrawal of the repudiation may be in any manner that clearly indicates intention to perform.
The withdrawal must include adequate assurances if they are justifiably demanded by the other party, but otherwise this is generally not necessary for retracting a repudiation |
|
|
The performance of one contractual promise is usually a condition precedent to the duty of immediate performance of the return promise. Less than complete performance is a breach of contract.
A court will apply the doctrine of “substantial performance” to excuse the condition of complete performance in the case of a ________ (express/constructive) condition and a _________ (major/minor) breach |
A constructive condition and a minor breach.
The doctrine of substantial performance will not apply to excuse an express condition, as this would likely defeat the express intent of the parties.
If there is a material breach, then performance has not been substantial, and thus the doctrine would not apply. |
|
|
In a case of anticipatory repudiation, how long does the repudiating party have to retract the repudiation? |
Until performance is due, unless the other party has materially changed his position in reliance on the repudiation |
|
|
When there has been anticipatory repudiation, is it proper for the nonrepudiating party to suspend his own performance and demand assurances from the other party? |
No. It would be fruitless for the nonrepudiating party to demand assurances from the repudiating party after an anticipatory repudiation because the repudiating party has already clearly indicated that he will not perform. If the repudiating party subsequently seeks to withdraw the repudiation, the nonrepudiating party can properly demand assurances. Demanding assurances also is a proper response to a prospective inability or unwillingness to perform. In that case, a party has reasonable grounds to believe that the other party will be unable or unwilling to perform when performance is due, but it is not yet certain. |
|
|
What is the effect of a waiver of a condition? |
It severs the right to treat the failure of hte condition as a total breach excusing counterperformance |
|
|
A contract may be discharged by a new contract that substitutes a new party to receive benefits and assume duties that had originally belonged to one of the original parties under the terms of the original contract. This is known as a discharge by: |
Novation |
|
|
Frustration of Purpose |
exists if the purpose of the contract has become valueless by virtue of an unforeseeable superveing event not the fault of the party seeking discharge |
|
|
An executive hires a personal trainer for six months at $100 per week to ready the executive for an upcoming triathlon. One month into the contract, the executive suffers an accident that leaves her paralyzed and unable to compete in the triathlon. When the executive fails to pay the trainer, the trainer sues for breach of contract. The trainer will ______________ because ___________. |
Not prevail; the purpose of the contract was frustrated |
|
|
In what ways may the absolute duty to perform be discharged? |
Full performance or a good faith tender of performance, made in accordance with the contractual terms |
|
|
Homeowner enters into a contract with Paver for Paver to pave Homeowner’s driveway for $500. Paver dies immediately after beginning the project.
Will Paver's contractual duties be discharged? And if so, under what doctrine? |
No, Paver's duties will not be discharged.
The death of a person necessary to effectuate the contract serves to discharge it for impossibility. However, personal service contracts are discharged in this manner only if the services involved are unique. If the services are the kind that can be delegated, the contract is not discharged by the death of the person who was to perform them. Here, paving a driveway is a service that is capable of being delegated; i.e., the work can be done by another competent paver. Thus, Paver’s duties are not discharged by impossibility. |
|
|
What consideration is required for an accord? |
The consideration will support an accord if it is of greater value than the originally bargained-for consideration. If the consideration is of a lesser value than the originally bargained-for consideration in the prior contract, it will be sufficient if the new consideration is of a different type or if the claim is to be paid to a third party.
In general, an accord may not be supported by consideration that serves as partial payment on an undisputed debt. |
|
|
Student enters into a contract with Violinist under which Violinist agrees to give Student violin lessons once a week for one year for $50 per week. Violinist subsequently has a stroke and is unable to teach.
Will V's contractual duties be discharged? And if so, under what doctrine? |
Yes, by impossibility. Death or physical incapacity of a person necessary to effectuate the contract serves to discharge it. This is the type of personal services contract that cannot be delegated because Violinist’s services are considered unique. |
|
|
The subsequent physical incapacity of a person necessary to effectuate a personal services contract serves to discharge the contract under what doctrine? |
Impossibility |
|
|
Student enters into a contract with Violinist under which Violinist agrees to give Student violin lessons once a week for one year for $50 per week. Student subsequently has a stroke and is unable to hold a violin. Student’s duties under the contract will: |
Be discharged by frustration of purpose |
|
|
A borrowed $5,000 from B and agreed to repay it by May 1. On May 15, A, strapped for cash, offers to pay B $4,500 on May 16, and B agrees to accept that amount. This agreement is __________. |
Unenforceable |
|
|
In an installment contract situation, the contract can be canceled by the buyer if: |
(i) There is a nonconformity in the shipment
(ii) The nonconformity substantially impairs the value of the entire contract and cannot be cured |
|
|
Under UCC Art 2, unless the k provides otherwise, which party will bear the cost of inspection of the goods by a buyer? |
The buyer, but may be recovered from the seller if the goods are nonconforming and are rejected |
|
|
C.O.D. means what? |
That a buyer has promised to pay without inspecting the goods |
|
|
What is the implied warranty of merchantability and when does it apply? |
In every sale of goods, unless explressly disclaimed, there is an implied warranty of merchantability.
It is a warranty that the goods will be merchantable, which means that they will be fit for the ordinary purposes for which such goods are used. |
|
|
How do you effectively disclaim the implied warranty of merchantability? |
The disclaimer must be part of the offer and acceptance process or must be agreed to by the buyer as a modification. It may be disclaimed either by specific or general methods.
Specific - The disclaimer can be specificaly disclaimed or modifed only by mentioning merchantability. If the sales contract is in writing, the disclaimer must be conspicuous. |
|
|
When do the rights of a third-party beneficiary to a contract vest? |
When the beneficiary
(i) Manifests assent to the promise in a manner invited or requested by the parties;
(ii) Brings suit to enforce the promise; or
(iii) Materially changes his position in reliance on the promise |
