Defenses To Formation Of A Contract.

Front 1

What people "lack capacity to form a contract?"

Back 1

-Infants, or people under 18,
- mental incompetents who lack ability to understand agreement
-and intoxicated persons *IF the other party has reason to know

Front 2

What is the consequence of incapacity

Back 2

The right to disaffirm the K, whereas others are bound.

Front 3

When does an agreement become enforceable against a person who made the agreement before he turned 18?

Back 3

When he continues to gain benefit from agreement from agreement, this serves "implied affirmation."

Front 4

Can a person lacking capacity be required to pay for necessities such as rent and utilities?

Back 4

Yes.

Front 5

Under Common Law, what two scenarios implicate the Statute of Frauds?

Back 5

A promise in Consideration of Marraige, or prenuptual agreement, must be in writing.

ALso, a promise by an administrator or executor of an estate to pay that estate's debts from a source other than that estates funds must be in writing.

Also, a promise to pay another's debt. *NOTE difference between promise to pay debt and promise to pay on behalf of.

Also, applies to service contracts where performance is impossible within 1 year of the contract.

Front 6

When does SOF apply under UCC2?

Back 6

For the sale of goods for $500 or more

Front 7

What are the two ways to satisfy SOF?

Back 7

By wrting, or by performance.

Front 8

Does part performance of a "services contract" satisfy the statute of frauds?

Back 8

No, full performance is requires to satisfy the SOF under UCC for a services contract.

Front 9

Does part performance satisfy SOF for a contract for the sale of goods.

Back 9

Yes, but only to the extend of the part performed, subject to the specially manufactured good exception.

Front 10

When a contract is for the sale of goods that are specially manufactured, when does performance satisfy SOF?

Back 10

As soon as the seller makes substantial beginning of making or obtaining the goods.

Front 11

In a K for the sale of real estate, does full payment satisfy SOF?

Back 11

No.

Front 12

To satisfy SOF for "Part Performance" of a K for the sale of land, two of the following three must be present:

Back 12

-Part payment
-Possession
-Improvement

Front 13

At CL, to satisfy SOF, what must be included in a writing?

Back 13

All material terms, including the "Who" and the "What."

Signature of person to be charged.

Front 14

What does UCC2 require of a writing to satisfy SOF?

Back 14

-Quantity terms
-Signature of charged person OR sig not required if no response within to writing within 10 days if both are merchants

Front 15

If a K falls under SOF, can a person authorize his agent to execute that K for him?

Back 15

Yes but that authorization must be in writing.

Front 16

Can a contract falling under SOF be modified?

Back 16

Yes, but that mod must be in writing.

Front 17

Can a K expressly provide that all modifications to the contract must be in writing?

Back 17

Under CL, ignored, under UCC, enforced unless waived.

Front 18

How does the defense of "ilegality" work?

Back 18

If the subject matter of the K is illegal, or if the purpose is illegal, the K is void, with one exception.

Front 19

If the purpose of a K is illegal when is that K still enforceable?

Back 19

Only enforceble by the party who did not know of the illegal purpose.

Front 20

How does the defense of Misrepresentation work?

Back 20

False statement of fact or concealment of facts can render a K void or voidable.

Front 21

When does a misrepresentation render the K fully void? void.

Back 21

WHen the misrepresentation is as to the nature of the contract, ex: A says K is a lease when in fact it is a purchase, fu

Front 22

When does misrepresentation make a K voidable but not outright void?

Back 22

When the misrepresentation is as to the terms of the contract, e.g. K says no termites, but their actually are.

Front 23

What is the different between a fraudulent a material misrepresentation

Back 23

DON'T KNOW YET

Front 24

Can reliance upon a misrepresentation by a third party constistute a voidable misrepresentation?

Back 24

No, e.g. inspector say no termites, rather tan seller, no defense.

Front 25

What are he elements of Duress?

Back 25

- D - Improper Threat
- P - No reasonable alternative
- D and P enter into an agreement

Front 26

Unconscionability - what are the 2 tests?

Back 26

-Unfair surprise,
-Oppressive terms.

Front 27

Is Unconscionability retrospective or reactive?

Back 27

Both tests for unconscionability look at the time when the K was made.

Front 28

WHat are the 3 elements for ambigiuity defense:

Back 28

1. A material term is open to at least 2 interpretations.

2. Each party attaches a different meaning.

3. Neither party knows or has reason to know of the other parties meaning.

Front 29

When there are multiple possible meanings of material term, and each party attaches a different meaning, but one party knows of the others interpretation, what happens?

Back 29

There is a K, interpreted according to the understanding of the ignorant party.

Front 30

How does "Mistake of Fact" operate?

Back 30

Both parties must be mistaken with the same assumption of fact that materially affects the agreed exchange. e.g., both parties think a car works, but it doesn't, mistake of fact is a defense.

Front 31

Does a mistake of fact as to the value of a good or service to be sold materially affect the agreed exchange?

Back 31

No.

EG both believe the car is worth 50,000, but worth 10, no mistake of fact.

Front 32

Is Unilateral mistake a defense to K?

Back 32

No, a single parties mistake of fact does not render the K unenforceable, except if the mistake is "palpable", meaning other party knew about or should have known the mistake.

Front 33

In the case of unilateral mistake, if one party learns of the mistake, can he use that as a defense to get out of the contract

Back 33

Yes, if no significant reliance by other party.