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25 Cards in this Set
- Front
- Back
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Applicable Law?
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Most Significant Relation Test:
-place of contract -place of negotiations -place performance is to occur -subject matter of the contract -domicile, residence, nationality, place of incorporation and place of business of parties to the contract |
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Choice of law provisions in a contract?
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Delaware will recognize if the jurisdiction bears some material relation to the transaction.
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Implied in Fact Contract?
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The law will infer the existance of a contract based on the conduct of the parties, rather than from words.
Are proven by circumstantial evidence. |
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Quasi Contract
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Will be implied in certain caess without regard to the actual intent of the parties. Used to protect against unjust enrichment.
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Contract to make a future contract?
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Enforceable if agreement specifies all material / essential terms including those to be incorporated in the future contract - can't leave anything to be agreed on later.
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Agreement to Negotiate in Good Faith?
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an enforceable written K to negotiate i ngood faith toward a more definate agreement - liability for failure to negotiate in good faith
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Oral Agreement to Enter into a Written Contract?
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Enforceable if terms fully agreed upon.
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Agreement to Arbitrate?
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Delaware favors and will interpret Ks as requiring arbitration if possible
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Contracts under seal?
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Must contain language to that effect in the body of the contract, a recital affixing the seal, and extrinsic evidence showing the parties intend to conclue a sealed contract.
Mere use of a corporate seal and the use of the word "seal" alone are insufficient. No SOL applies to Ks under seal, but there is a presumption of payment after 20 years (though that's not a bar to suit). No consideration required. |
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Good faith and fair dealing?
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Implied in every contract.
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Unconscionability?
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If it wasn't unconscionable at the time you entered into it, DE courts are unlikely to let you out of it later on if it becomes unconsciounable.
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Promissory Estoppel?
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Use as a consideration substitute if:
Plaintiff shows by CLEAR AND CONVINCING EVIDENCE: 1) promise 2) it was reasonably foreseeable the promise would induct action or forbearance by the promisee 3) the promissee reasonably relied on the promise to his detriment 4) injustice can only be avoided by enforcement Remedy: reliance damages (sometimes expectation damages) |
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Oral contract modification that would make the oral contract fall under the SOF?
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modification not enforceable
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If K says modifications must be in writing?
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UCC Sale of Goods? enforce
Common Law? won't enforce |
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SOL for contracts?
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Most contracts? 3 years
Actions to enforce a promissory note? 6 years Actions by employee for unpaid wages or benefits for services that have been performed? 1 year |
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Covenants not to compete?
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Must be shown to be reasonable in duration and scope by CLEAR AND CONVINCING evidence.
Doctors don't get injunctions for violation of, but do get liquidated damages. |
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At will employment and implied good faith standard?
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DE is at will employment state. But, employee can show breach for implied covenants of good faith and fair dealing by showing:
-he suffered intentional racial discrimination -employer's disparate treatment with employee and others similarly situated -adverse employment action because of discrimination |
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Parol Evidence Rule?
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Applies only to integrated writings.
Identify the date the contract was formed. -evidence after the contract is made always comes in, even if it contradicts the writing -parol evidence will come in if the writing is ambiguous on its face (reasonably susceptible to different interpretations) - construed against the drafter if there is an ambiguity |
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Merger clause?
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this contract contains all promises, and there isn't any other sutff
if there's a merger clause, you can still go back for a non-contradictory purpose of it ambiguous or show defense |
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Scrivener's Error?
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contract was typed incorrectly and doesn't reflect the actual agreement
can always put forth evidence to show court in equity will reform the agreement to meet the intention of the parties |
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Damages?
Expectation Reliance Restitution Consequential |
Expectation - put plaintiff in position would have been in if k was fully performed
Reliance - put plaintiff in position as if k never happneed (promissory estoppel or if expectation damages too speculative or high) Restitution - defendant must return the benefit he received (sometimes with quasi-k) Consequential - special damages the defendant knew or reasonably could have foreseen plaintiff would incur |
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Punitive Damages?
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Don't get.
Unless in rare cases where defendant's breaching actions were willfull and malicious or deceitful. |
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business tort of deceit?
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for fraud or misrepresentation
punative damages |
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Liquidated damages clause?
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upheld if reasonable and damages are uncertain at time contract is made
can't be a penalty - void as against public policy if will act as a penalty |
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specific performance?
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an equitable remedy, a discretionary remedy - there is no right to specific performance
give when money damages are inadequate |
