Reading...
Play button
Play button
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;
134 Cards in this Set
- Front
- Back
|
What is an integrated agreement?
|
ONe that constitutes a final expression of one or more terms of the agreement
|
|
|
When is an agreement completely integrated?
|
When it is adopted by the parties as a complete and exclusive statement of the terms of an agreement
|
|
|
when is an agreement not completely integrated
|
If it omits a consistent additional term which is agreed to for separate consideration or such a term as in the circumstances might naturally be omitted from the writing
|
|
|
What is a merger clause?
|
A clause in a K that purports that the agreemenr is completely integrated.
|
|
|
What are the two main instances when parol evidence can be considered?
|
To prove additional/different terms and to prove meaning of terms.
|
|
|
Under the Common law approach how does the Court determine whether or not an agreement is completely integrated?
|
By looking to the 4 corners of the document
|
|
|
UNder both the common law and the RST approach when can PE be used to prove additional or different terms?
|
If the agreement is completely integrated then PE can not be used, but if it is just integrated, then the COurt can use PE to determine consistent additional terms
|
|
|
UNder the RST approach how does a COurt determine whether or not a K is completely integrated?
|
Based on the language of the K and extrinsic evidence of the parties actual intent(PE).
|
|
|
When is PE admissible to show a failure of consideration?
|
ALways
|
|
|
unDER THE common law approach and the COrbin approach when is extrinsic evidence admissible to show meaning?
|
Whenever there is an ambiguity, the difference occurs with the definition of an ambiguity
|
|
|
Under the common law approach how does the court determine if there is an ambiguity in the K?
|
They look to the 4 corners of the K
|
|
|
UNder the Corbin/RST approach how does a court determine if an ambiguity exists in a K?
|
The court looks to the K's language and can use extrinsic evidence to determine a meaning to which the K is reasonably susceptible
|
|
|
When is PE admissible under the UCC?
|
IN an integrated agreement it can be admitted to explain or supplement the terms by course of dealing, usage of trade, or course of performance and by the evidence of consistent additional terms unless the COurt finds that the document was completely integrated
|
|
|
When will the court allow for reformation of a K with regards to a mistake in integration?
|
When there has been established beyond a shadow of a dount that there was a contractual relationship that was subsequently erroneously rendered and there has been no change of position by the other party based ont he mistake.
|
|
|
What types of K's must be in writing to meet the terms of the Statute of frauds?
|
1. Agreements for the sale of property or long term leases ( more than a year)
2. Agreements not to be performed within one year 3. Agreements for the sale of goods that are greater than $500 |
|
|
What are the general exceptions to the Statute of frauds?
|
1. Agreement to help someone in exchange for some money to be left to you in a will. COurt will allow for restitution for services rendered
2.WHen a vendee has already paid for land they can usually recover the price 3. In employment K's the person can usually recover in quantum meruit for the services rendered |
|
|
When does the RST allow for recovery in the case of an invalid document under the SOF?
|
When the person has committed good faith actions in reliance on the invliad K and inustice can ony be avoided by enforcement
|
|
|
What factors are considered in determining whether injustice cna be avoided by the enforcement of an invliad K under the SOF?
|
a.Availability/adequacy of other remedies particularly cancellation or restitution
b.Definite and substantial character of the action or forbearance in relation to the remedy sought c.The extent to which the action corroborates evidence of the making and terms of a promise, or the making and terms are otherwise established by clear and convincing evidence d.The reasonableness of the action of forbearance e.Forseeability of the action to the promisor |
|
|
In order to enforce a K for the sale of goods over $ 500 what is necessary ?
|
a WRITING signed by the paty against whom enforcement is sought
|
|
|
Between merchants what constitutes a signed writing?
|
If they receive confirmation of acceptance from the other party and they do not give a notice of objection to the other party within 10 days of receipt.
|
|
|
What are the exceptions to the PE rule for goods?
|
1. Specially manufctured goods
2. Written confirmation 3. Admission 4. Part performance by acceptance or partial payment |
|
|
How much of a writing is required under the RST to satisfy the SOF?
|
K is enforceable if it is evidenced by any writing, signed by or on behalf of the party to be charged, which
1.reasonably ids the subject matter of the K 2.is sufficient to show that a K with respect thereto has been made between the parties or offered by the signer to the other party 3.states with reasonable certainty the essential terms of the unperformed promises in the K |
|
|
Can an unsigned writing be combined with a signed writing to meet the requirement of the SOF?
|
Yes, as long as the signed writing is enough to establish a K, and the unsigned writing refers to the transactino as referred to in the signed document
|
|
|
Cna an unsigned document be used to meet the requirement?
|
Yes, the court will look to the policy behind the SOF (deterring fraud)to determine if the Court should enforce the K
|
|
|
Are electronic signatures valid?
|
Yes, UNiform electronic signature act allows for e-signatures
|
|
|
What must be present ot constitute consideration?
|
A bargain
|
|
|
How does the RSt define a bargained for promise?
|
If it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise
|
|
|
Does the COurt care if what is bargained for does not in itself induce the bargain, but it is something else?
|
NO, RSt §81- The fact what is bargained for does not of itself induce the making of a promise does not prevent it from being consideration for the promise. The fact that a promise does not of itself induce a performance or return promise does not prevent the performance or return promise from being consideration for the promis
|
|
|
When can past actions count for consideration?
|
If there is some antecdent debt that is now unenforceable under the law(B/c of SOL, or incapacity of the person to K at the time), but the person then promises to pay off the debt.
|
|
|
What is another exception to the past act exclusion for consideration?
|
When a peson a promises to pay based on a moral obligation and the receipt of a material benefit RST 86- Webb v McGowin
|
|
|
Can a pre-existing duty give consideration?
|
UNder common law no, under the UCC a modification of a K does not need new consideration.
|
|
|
When can a K modification be valid without new consideration under the common law?
|
If there is an unforseen circumstance that affects the obligations of the parties. RST 89
|
|
|
How can you get around the pre-existing duty exclusion?
|
1. Give new consideration for any modification
2. Argue that there are unforseen circumstances 3.Aruge that the pre-existing duty was excused 4. Rescind the original K, and rebuild it (must be a material breach) |
|
|
Is the value of the consideration relevant?
|
Generally no, but i the case of sham considerations the court may find no bargain (not true for option K's)
|
|
|
WHen can valueless consideration be considered valid?
|
When the parties thought in GOOD FAITH that there was vluae to the K at the time of King, or if there was some uncertainty about the value of the C which later turns out to be worthless. RST 74 Dyer v National By-Products
|
|
|
When can formalities overcome the lack of C?
|
In the case of option K's, or in the case of a seal some states permit a presumption of C that must be refuted. Some like the UCC give no weight to the seal at all.
|
|
|
In thecase of option K's is it even necesary to give the nominal consideration?
|
Probably not, Smith v wheeler, Jolles v Whittenberg. COurt will look to the length and vluae of the option to determine if ti should be enforced
|
|
|
Can the intention not to be bound trump the presence of a bargain?
|
Yes, as long as it is clearly and conspicuously marked, and the party did not commit any actions that might make it seem like thye intended to be bound
|
|
|
What are the two possible uses for promissory estoppel and what are the possible damages recoverable under each?
|
1. Consideration substitute- Full K damages
2. Separate caue of action- Person will be entitled to reliance damages |
|
|
What are the elements of promisoory estoppel?
|
1. A promise
2. A promise that would be likely to induce detrimental reliance by the promisee 3. Promisee actually relies on the promise to his detriment 4. INjustice will be done if the promise is not made binding RST 90 |
|
|
How does PE work in the case of bids?
|
If the offeror knows that the bid could induce substantial action or forebearance before acceptance, then the bid creates an option K. RST 87(2)
|
|
|
What is the firm offer rule all about?
|
UCC 2-205 states: An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror
|
|
|
What is the focus as far as damages are concerned when the court is using PE as a separate from of action?
|
Focus is on reliance damages
|
|
|
Is all reliance detrimental?
|
No. Blatt v USC
|
|
|
When will a court refuse to use PE to enforce a promise?
|
When it is not the kind of promise that should have induced reliance Blatt v Usc, Ypsilanti v GM,
|
|
|
What is the definitionof a promise?
|
1. A promise is “a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promise in understanding that a commitment has been made.”RST 2
|
|
|
How does a COurt determine if injustice will be served by not enforcing the promise?
|
In equity, the court will use a balancing test that looks to the reasons for breaking the promise. Cowen v Cowled Media COmpany
|
|
|
DO all K's hae a duty to act in good faith to carry them out?
|
Yes, RST 205, UCC 1-203
|
|
|
How does the UCC define good faith?
|
Good faith” …. means honesty in fact and the observance of reasonable commercial standards of fair dealing
|
|
|
How can you determine if a party has breached their duty of good faith dealing?
|
1. Look to the K. Try to decide if the activity committed is one that is coverd by theK
2. Try to determine if there was a valid (business)purpose for the action |
|
|
Can the duty of good faith be waived?
|
For the UCC no-1-1-2(3). There is a split of authority as to whether it can be waived for non-goods K's
|
|
|
What are the 2 types of implied warranties under the UCC?
|
1. merchantability
2. Fitness |
|
|
What is the warranty of merchantability?
|
Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a MERCHANT with respect to goods of that kind.”
|
|
|
What are the factors looked to decide if a good was merchantable under the UCC?
|
1.Pass in the trade
2.Fungible goods of fair and average quality 3.Fit for the purposes to which such goods are used 4.Run within the variations permitted 5.Adequately packaged, contained and labeled 6.Conform to any promises or affirmations made on the container |
|
|
What is the implied warranty of fitness for a particular usage?
|
UCC §2-315:
1. The seller (nt merchant) must knwo at the time of the K that the goods are going ot be used for a particular purpose and 2. The buyer must be relyingon the seller's expertise |
|
|
What is required for an express warranty to valid?
|
1. An affirmation of fact or a promise
(Any description or model which is made a basis of the bargain warrants that the goods will conform to such) 2.It must relate to the goods 3.Must become a part of the bargain between the parties |
|
|
Will a court enforce an express warranty in the absence of reliance?
|
Yes, as long as it was bargained for
|
|
|
Can a seller exclude the implied warranty?
|
Yes, the presence of words like as is will exclude all warranties.
Also, if the buyer has had an opportunity to examine the goods, and the defects were or should have been revealed to them then the warranty is excluded. |
|
|
What is the 3 step analysis for conditions?
|
i.Have all operative facts/acts occurred on which the duty to perform depends?
ii.Are any of these operative facts/acts actually “promises” rather than “conditions” to performance? iii.If they are conditions, have they been waived or excused? |
|
|
Who has hte burdne o fshowing that a condition precedent has been satisfied?
|
The person bringing the case
|
|
|
What are the two things in RST 227(1) that would allow a court to find a condition where a forfeiture is the result
|
If the event is within the control of th eperson or if the circumstances show that they have assumed the risk
|
|
|
What are the two ways to avoid a condition?
|
Waiver, and excuse
|
|
|
How hard is it to waive a condition?
|
It is easy. There is no requirement of a writing or separate consideration. but THE PROMISE WILL NOT BE ENFORCED IF THE CONDITION WAS A MATERIAL PART OF THE BARGAIN AND THE PROMISEE WAS UNDER NO DUTY TO PERFORM or THE PARTY ASSUMED THE RISK
|
|
|
How does waiver differ from equitable estoppel?
|
Estoppel requires the person to rely on the representation. Waiver does not require this.
|
|
|
When can waiver be revoked?
|
When:the time for the C has not passed, the condition is in the control of the promisee, and the promisee has not changed his position b/c of the waiver. Restatement (Second) §84:
|
|
|
When would a court allow a condition to be excused?
|
To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange- RSt 229
|
|
|
How does a court decide if a promise is a constructive condition?
|
i. Look to whether or not the promise WAS SUCH AN INTEGRAL PART OF THE AGREEMENT THAT THE PARTIES WOULD NOT HAVE INTENDED ONE PARTY TO PERFORM IF THE PROMISE IS NOT FULFILLED
|
|
|
What is the 3 part test to decide if a condition has been breached?
|
i.Was there an express condition?
ii.Does a constructive condition apply? 1.Was this such an integral part of the bargain that non-fulfillment would warrant discharge by one of the parties iii.Was there substantial compliance in the performance? 1.What was the reason for the breach? 2.Does it defeat the purpose for which they entered into the bargain? 3.Was the breach willful or wanton? |
|
|
What must occur in order for the court to find an anticipatory repudiation?
|
There must be a definite and unequivocal manifestation of intention on the part of the repudiator that he will not render the promised performance when the time fixed for it in the contract arrives.” (quoting Corbin)
|
|
|
UNder the UCC when can a person make a demand for adequate assurance of performance?
|
When they have reasonable grounds for insecurity.
|
|
|
HOw must the party demand assurance?
|
They must demand in writing ( unless the parties ahve a hitory of dealing orally and the other party knows they are requesting assurance), can suspend performance until they get a response UCC 2-609
|
|
|
Between merchants what is the standard used to judge reasonableness of insecurity?
|
Commercial standards
|
|
|
What are the factors under the RST to find a material breach?
|
(a) The extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated;
(b) The extent to which the injured party may be adequately compensated in damages for lack of complete performance; (c) The extent to which the party failing to perform has already partly performed or made preparations for performance; (d) The greater or less hardship on the party failing to perform in terminating the contract; (e) The willful, negligent or innocent behavior of the party failing to perform; (f) The greater or less uncertainty that the party failing to perform will perform the remainder of the contract |
|
|
Basically in order to be a MB, what must the breach be?
|
It must go to the substance of the agreement
|
|
|
When can waiver be revoked?
|
When:the time for the C has not passed, the condition is in the control of the promisee, and the promisee has not changed his position b/c of the waiver. Restatement (Second) §84:
|
|
|
For what kjind of defect can a buyer reject goods before acceptance?
|
For any defect
UCC 2-601 |
|
|
Does a rejection for a defect cancel the K?
|
No. If the time for the K has not expired, then the seller can fix. If the time has passed but the seller had a reasonabel belief that the goods would be accpetable they have a REASONABLE TIME to correct UCC 2-508
|
|
|
HOw can a buyer accept goods?
|
Acceptance occurs when after a reasonable opportunity to inspect the goods has given the seller the impression that the goods are acceptable or that the buyer will accept them despite the flaws-2-606(1)(A), or he fails to make an acceptable rejction(1)(b) or does any act inconsistent with the seller’s ownership (as long as the seller ok’s acceptance)-2-606(1)(C)
|
|
|
When can a buyer revoke acceptance?
|
The non-conformity impairs the value to him as accepted if t was accepted on the assumption that the defects would be cleared up or If the defect was not discovered and the acceptance was based on the inability to discover the problem 2-608
|
|
|
How soon must a buyer reject the goods for cuase?
|
Must occur in a reasonable time after the buyer discovers, or should have discovered the defect and before there has been any substantial change in the goods 2-608
|
|
|
What are the two possible recoveries for a breach after there has been substantial performance?
|
Cost of completion or diminuition of value
|
|
|
When can a party get the cost of completion for breach after substantial performance?
|
When the cost is not clearly disproportionate to the probable loss of value to them
|
|
|
What are the two tests established under the RST 15(1) to show incompetence?
|
cognitive test, and the volitional test
|
|
|
What is the cognitive test?
|
) A person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect he is unable to understand in a reasonable manner the nature and consequences of the transaction
|
|
|
What is the volitional test?
|
) A person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition.
|
|
|
What is the difference as far as the non-incompetent party between the cognitive test and the volitional test?
|
The non crazy party has to be aware of the person's condition under the volitional test, while that is not necessary under the cognitive test
|
|
|
When does an incompetent party have to make restitution to the other party?
|
Always unless the other partyknew of the incompetence and they were not furnishing necessaries
|
|
|
How do courts determine if a person is an infant?
|
They use a strict age test.
|
|
|
When is a K with a minor voidable?
|
Always, even if it has been fully performed
|
|
|
Cna a minor disclaim K duties after reaching majority?
|
Yes, as long as it is within a reasonable time
|
|
|
When must an infant make restitution?
|
Always, BUT they are not responsible for any diminuition in value of the benefit, unless the benefit was a necessary.
|
|
|
What makes something a necessary?
|
THe person receiving it could not have received the benefit from another source for free. If kid could move home, then housing is not a necessary
|
|
|
What are the two types of misrepresentaiton?
|
Fraudulent, and material
|
|
|
When is a MR fraudulent?
|
WHen the maker intends his assertion to induce a party to manifest his assent AND (b) (i) knows or believes that the assertion is false, (ii) does not have confidence that he states or implies in the truth of his statement, (iii) knows that he lacks the basis that he states or implies for the assertion. Restatement (Second) §162(1
|
|
|
When is a MR material?
|
A misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so.” Restatement (Second) §162(2
|
|
|
When does a representation induce assent?
|
i. Restatement (Second) §167: “A misrepresentation induces a party’s manifestation of assent if it substantially contributes to his decision to manifest his assent.”
|
|
|
How does a court decide if reliance on the MR was reasonable?
|
They use a common sense analysis.
|
|
|
Can an opinion constitute a MR?
|
Usually not, UNLESS, the opinion is not their true opinion or their is a special relationship between the parties.
|
|
|
When is there a special relationship such as to justify holding an opinion as a MR?
|
When the person
) stands in such a relation of trust and confidence to the person whose opinion is asserted that the recipient is reasonable in relying on it (fiduciary), orreasonably believes that, as compared with himself, the person whose opinion is asserted has special skill, judgment or objectivity with respect to the subject matter, or ) is for some other special reason particularly susceptible to a misrepresentation of the type involved |
|
|
What are the two kinds of duress?
|
Of the person, and of the goods
|
|
|
When is a K voidable for duress?
|
iii. RST 2nd §175(1): “If a party’s manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim.”
|
|
|
What makes a threat improper?
|
A threat is improper if:
what is threatened is a crime or a tort…, what is threatened is a criminal prosecution, [the threat is] the use of civil process … made in bad faith, or the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient. 2. A threat is improper if the resulting exchange is not on fair terms, and the threatened act would harm the recipient and would not significantly benefit the party making the threat,the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or what is threatened is otherwise a use of power for illegitimate ends.” RST 176 |
|
|
Does a partyy have to give notice that they object to a demanded K modification?
|
Most likely, 1. seeking modification is very common and unless notice was guaranteed parties would never know if the other party had accepted and was planning on trying to void the K later.
|
|
|
UNder the UCC3-202 what makes a K unconscionable?
|
“basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract
|
|
|
What is the two part test for unconscionability?
|
1. Process inquiry- Was there an absence of meaningful choice?
2 substance inquiry- Are the terms unreasonably favorable to the other party |
|
|
What are some of the factors that go into a process analysis for UC?
|
a.Is there unequal bargaining power?
b. What was the manner in which t he K was entered into? Did each party have a reasonable opportunity to understand the terms? What was the level of the parties sophistication c.What was the context of the clause? Was it in fine print or it buried in the back? d.Will enforcement of the clause constitute an UNFAIR SURPRISE on the party? |
|
|
What are the factors that go into a substance analysis for UC?
|
a. Do the terms of the K appear to be unconscionable according to the MORES AND BUSINESS PRACTICES OF THE TIME AND PLACE
b. Was there Oppression- The circumstances around the making of the K show a gross overreaching on the part of one party- |
|
|
When is there undue influence?
|
when there is a combination of undue susceptibility and exercise of UI
|
|
|
What must be shown for there to be undue susceptibility?
|
a. A total weakness of the mind OR
b. A lesser weakness even though the person is not fully incapacitated. It is not necessary to show a total incapacity |
|
|
What are some of the factors that went into the undue influence analysis in Odorizzi?
|
a.Unusual or inappropriate time
b.Unusual place c.Insistent demand that the transaction be finished at once d.Extreme emphasis on the results of a delay e.Multiple persuaders f.Absence of 3rd party advisers g.Statements about the lack of time to consult lawyers |
|
|
Waht is the test for unconscionability under UCC 2-302?
|
, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract
|
|
|
What are the two types of analyses to undetake to decide if a K is Unconscionable?
|
1. Process analysis- Was there an absence of meaningful choice
2. Substance analysis- Are the terms unreasonably favorable to the other party? |
|
|
What are the factors to consider when deciding if a K is UC based on process?
|
a.Is there unequal bargaining power?
b.What was the manner in which t he K was entered into c.What was the context of the clause d. Will enforcement of the clause constitute an UNFAIR SURPRISE on the party? |
|
|
Waht are the factors to consider under a Substance based inquiry for UC?
|
a.Do the terms of the K appear to be unconscionable according to the MORES AND BUSINESS PRACTICES OF THE TIME AND PLACE
b.Was there Oppression- The circumstances around the making of the K show a gross overreaching on the part of one party |
|
|
When can a mutual mistake make a K voidable?
|
a.The mistake was mutual
b.The mistake was in existence at the time that the K was made c.It was a material mistake d. The party seeking to void the K did not ASSUME THE RISK of the mistakem Rst 152 |
|
|
When has a party assumed the risk that an assumption might be a mistakte?
|
when
(a) the risk is allocated to him by agreement of the parties(express agreement) (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient(conscious ignorance) (c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so (equity) |
|
|
HOw can you aruge that a mistake does not make a K voidable?
|
a.Dispute the Elements:
i.No mistake- EG, it was about future events ii.Not a material mistake iii.Not shared b.Argue assumption of the risk |
|
|
When can a unilateral mistake make a K voidable?
|
a.The mistake was material
b.It was in existence at the time of the K c.THE OTHER PARTY KNEW ABOUT THE MISTAKE OR THEY CAUSED THE MISTAKE d.The Party did not assume the risk RST 153 |
|
|
When can an action count as a false assertion or the terms of mistake?
|
§160. When Action Is Equivalent To An Assertion (Concealment) Action intended or known to be likely to prevent another from learning a fact is equivalent to an assertion that the fact does not exist
|
|
|
WHen can the failure to diosclose constitute a false assertion for mistake?
|
When
1. When the person knows that the disclosure is necessary to correct a previous assertion that is now fraudulent or a MR 2. When they know that the assertion is necesssary to correct a mistake of a basic assumption or non-disclodure constitutes a failure to act in good faith 3. When they know that the assertion is necessary to correct a mistake about the contents or effects of a writing embodying all or part of the agreement 4. When there is a relation of trust or confidence between the parties |
|
|
When is non-disclosure equivalent to an assertion that the fact does not exist
|
(a) where he knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation or from being fraudulent or material.
(b) where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption on which that party is making the contract and if non-disclosure of the fact amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing. (c) where he knows that disclosure of the fact would correct a mistake of the other party as to the contents or effect of a writing, evidencing or embodying an agreement in whole or in part. (d) where the other person is entitled to know the fact because of a relation of trust and confidence between them. Usually a fiduciary here. |
|
|
What is necessary to find imposibility under the common law?
|
Rst § 261- Where after a K is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was the basic assumption on which the K was made, his duty to render performance is discharged, UNLESS the language or the circumstances indicate the contrary-
|
|
|
Who can rescind the K for impossibility?
|
Either party can
|
|
|
When has a K become impracticable under the UCC 2-615?
|
Except to the extent that the seller assumed the risk a.Delay in performance or nonperformance in whole or in part by a seller that complies with paragraphs (b) and (c) is not a breach of the seller's duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.
|
|
|
What can a seller do if their performance has become impractical?
|
They can allocate their goods in a manner that is fair and reasonable. They may also notify the seller seasonably that thier will be delay or non-performance ot that there will be allocation
|
|
|
When is a K frustrated?
|
RST 265 1.Event has occurred that “substantially frustrates” the party’s “principal purpose.”Frustration must be nearly total.Principal purpose generally construed broadly.
2.It must have been “a basic assumption on which the contract was made” that the event would not occur. 3.The frustration must have resulted without the fault of the party seeking to be excused. 4.That party must not have assumed a greater obligation than the law imposes. Can’t have been a foreseeable risk |
|
|
How can parties protect against frustration?
|
Force majeure clause
|
|
|
What qualifies as impracticability under the UCC?
|
Severe shortage due to war, failure of crops, embargo, or other acts of god
b.Increased cost alone does not excuse performance unless the rise in cost is due to some unforeseen contingency which alters the essential nature of the performance |
|
|
When can a party assign a K?
|
RST 317 As long as it is not forbidden in the K, it can be assigned UNLESS the assignmentwould materially change the duty of the obligor, or materially increase the burden or risk imposed on him by his contract, or materially impair his chance of obtaining return performance, or materially reduce its value to him, or
b.the assignment is forbidden by statute or is otherwise inoperative on. grounds of public policy Same for the UCC 2-210, except the rigts to damages for breach can always be assigned whether or not the K says not to or not |
|
|
When can a K be delegated?
|
Unless otherwise agreed or unless the other party has a substantial interest in having his original promisor perform or control the acts required by the contract(UCC 2-201) or RST 318 Unless otherwise indicated, any K duty can be delegated unless the obligee has a substantial interest in having the original obligor perform the duty personally. Thus, except where performance by a delegee would vary materially from the performance promised by the obligor, a K duty may be performed by a delegee without constituting a breach.
|
|
|
UNder the UCC does a delegation relieve the delegator from performing?
|
NO, . No delegation of ,performance relieves the party delegating of any duty to perform or any liability for breach.UCC 2-201
|
|
|
When can a party not a party to the K sue for breach?
|
When they are an intended 3rd aprty beneficiary, 1.Recognition is in line with the intention of the parties &
a. Performance will satisfy an obligation of the promisee to pay money to the beneficiary ( creditor) OR b.The circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance |
|
|
When can a duty or promise to a 3rd party beneficiary be changed?
|
Always, unless the right has vested?
|
|
|
When does a right vest for 3rd party ben's?
|
RST 311- A right vests when the B:
i.Manifests assent to it at the request of one of the parties ii.Sues on the right iii.Materially changes her position by acting in justifiable reliance on it b.Parties can stipulate that the right can be taken away , Even after it vests |
