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48 Cards in this Set

  • Front
  • Back
elements for p/e
1) promise
2) detrimental reliance
3) promisor expects reliance
4) promise induced reliance
5) unjust not to enforce
elements for p/r
1) benefit conferred
2) promise by benefited party
3) benefit not gratituous
4) promisor unjustly enriched
5) benefit induced promise
maxims of interpretation
1) in light of circumstances
2) prevailing meanings
3) cop, cod, tu
preference in interpretation
1) rznble interpretation
2) express terms > cop > cod > tu
elements for doctrine of rznble expectations
1) adhesion K
2) drafting party had reason to believe that adherent would not have assented if knew meaning
3) adherent interpretation is rznble
4)over a non-dickered term
total integration exceptions for PER
1) oral condition precedent to formation
2) collateral agreement rule
3) ambiguity as to interpretation
4) invalidity (fraud)
5) reformation
PER: elements for collateral agreement rule
1) consistent
2) additional term
3) not in writing
4) separate consideration
5) term ordinarily not included in such a K

= finds partial integration and evidence goes to jury
PER: elements for interpretation exception
classical: plain meaning rule
r2d: permits extrinsic evidence
express warranty
1) affirmation of fact or promise
2) relates to goods
3) basis of bargain
what is an affirmation of fact or promise?
something objectively measurable, specific, trade usage, words
three interpretations for "basis of bargain"
1) Buyer’s reliance
2) Rebuttable presumption of reliance.
--seller has the burden of proof to show there was no reliance. (majority rule.)

3) Irrebuttable presumption of reliance.
1) How would seller rebut reliance?

2) What if seller made affirmations of fact on delivery after the deal closed?
1) Show buyer had knowledge—e.g. independent research, had Consumer Reports.

2) Seller would argue there was no reliance. But, buyer would say there was a modification.
implied warranty of merchantability
1) sale of goods
2) by a merchant
... warranty that goods are merchantable

3) if not by a merchant, IWM may arise from cod or tu.
IWM: what makes a good merchantable?

how do you prove that a product is not merchantable?
1) pass without objection in the trade
2) fit for the ordinary purposes
3) goods as the agreement required
4) goods conform to the affirmation of fact or promise on label

to prove a product is unmerchantable, first establish the standard of merchantability in the trade.
what is the scope of the IWM?
1) covers food and drink
2) goods must be fit for the general purposes appropriate for such goods
3) duty to disclose known latent defects
4) isolated sale NOT w/in scope of IWM b/c not merchant
implied warranty for a particular purpose
1) buyer has an explicit particular purpose
2) seller knows or has rzn to know of purpose
3) buyer relies on seller's expertise & jment
4) seller knows or has reason to know of buyer's reliance
disclaimers/modification of warranties
-cannot disclaim express warranties
... BUT PER!

-MUST mention "merchantability" and be conspicuous

-MAY disclaimer verbally or in writing

-Use disclaimer language provided in statute
implied warranty of habitability
1) new construction
2) defect at time of closing
3) btwn builder & first buyer

- put loss on party best able to prevent it

- real estate disclaimers disfavored.
--not enforced if boilerplate.
how does a buyer show a breach of warranty?
show that the good was nonconforming to the affirmation of facts or promise
what warranty defenses are available to the seller?
1) Opinions are not warranties
2) Disclaimers
3) Privity
4) Buyer's inspection
5) Buyer's failure to notify of nonconforming goods
minor incapacity & exceptions
voidable if under 18.

-doctrine of necessaries
-rznble time for disaffirmance upon majority
mental incapacity & exception
1) unable to understand or act rznbly in relation to transaction
2) other party has rzn to know of condition
... then voidable

1) fair terms
2) w/o knowledge
3) avoidance would be unjust
1) physical duress

2) duress

3) economic duress
1) no manifestation if physically compelled

2) duress
1. improper threat
2. lack of rznble alternatives other than to assent
3. threat induced assent
... voidable
... voidable if induced by 3rd party unless other party was innocent party

3) economic duress
1. improper threat
2. lack of rznble alternatives other than to assent
3. threat induced assent
... voidable
* some courts require the person causing the duress to cause the financial hardship (Batsakis--did not cause war)
duress: what is an improper threat?
1. not to pay an acknowledged debt in bad faith

2. threat is a crime/tort
undue influence
1. victim unduly susceptible
2. excessive pressure
... voidable

if induced by 3rd party, then voidable unless innocent party
duress, undue influence, misrepresentation:

innocent party
1. acted in good
2. gave value or reliance
3. w/o knowledge of duress/undue influence by 3rd party
(other party, 3rd party)

1) fraudulent misrepresentation
2) material misrepresentation
induced by other party:
1. fraudulent or material misrepresentation
2. justified reliance
... voidable

1) fraudulent
maker intends his assertion to induce assent &
1. knows of assertion-fact disconnect, or
2. has no confidence
3. knows no basis for assertion

2) material
1. if misrepresentation would induce a rznble person's assent (obj), or
2. maker knows it would induce recipient's assent (subj)
unjustified reliance on opinions & exceptions
gr: recipient not justified in relying on opinion

1. fiduciary relationship (where recipient is rznble in his reliance)

2. special skill (person giving opinion has special skill as to subject matter)

3. particular susceptibility (victim particularly susceptible to misrepresentation)
assertions = opinions when...

assertion = opinion if it expressly only an uncertain belief or a judgment as to quality, value, authenticity..

if rznble, an opinion on facts not disclosed and not otherwise known = assertion when:
1. facts known to person are compatible w/ his opinion, or

2. he knows facts sufficient to justify him in forming it
nondisclosure of a known fact is an assertion that the fact does NOT exist when:
1. contradiction
2. correction of assumption
3. correction of writing
4. fiduciary
public policy
term may be unenforceable if
1. legislation provides, or
2. interest in enforcement outweighed by public policy concerns
public policy: ancillary restraints on competition & remedies
1. ancillary promise to K
2. unreasonable restriction
3. hardship on restricted party
4. injurious to the public

1. blue pencil rule
2. invalidate agreement
3. rewrite agreement
bearing risk
1. by agreement
2. party proceeds into K treating his limited knowledge as sufficient
3. implied due to cop, cod, tu
mutual mistake
1. mistake at time of formation
2. both parties mistaken
3. to basic assumption of K
4. party seeking recission did not bear risk
unilateral mistake
1. mistake at time of formation
2. unilateral
3. basic assumption of K
4. material impact (obj/subj)
5. enforcement unconscionable
6. other party knew/had rzn to know of the mistake or caused the mistake
7. party seeking recission did not bear risk
impossibility by death/incapacity

impossibility by destruction/deterioration/failure
1. death/incapacity
2. makes performance impracticable
3. nonoccurrence of death/incapacity was basic assumption of K
4. w/o fault of party seeking relief
5. party seeking recission did not bear risk

1. specific thing necesssary for performance of a duty
2. d/d/f of that thing made performance impracticable
3. nonoccurrence of thing a basic assumption of K
4. event occurred w/o fault party seeking relief
5. party seeking relief did not bear risk
UCC casualty to goods
UCC – casualty to goods
(1) goods suffer casualty
(2) without fault of either party
(3) before risk passes to buyer
... then
1. if loss is total, the K is avoided
2. if loss is partial or the goods no longer conform to K,
a. buyer may demand inspection, and
b. treat K as avoided, or
c. accept the goods with adjusted price
(impossible > impractical > inconvenient)
often used by person who is obligated to perform the service.

note: it is never impracticable to pay.

(1) supervening event (event occurs after formation but before completion of performance)

(2) event made performance impracticable

(3) nonoccurrence of event was a basic assumption of K

(4) event occurred without fault of either party

(5) party seeking relief did not bear risk
Frustration of Purpose
(1) supervening event (event occurs after formation but before completion of performance)
(2) event substantially frustrates the principle purpose of K
(3) nonoccurrence of event was a basic assumption of K
---defense: show that party anticipated this event.
(4) event occurred without fault of either party
(5) party seeking relief did not bear risk
(1) mutual assent
(2) consideration
pre-existing duty rule & exceptions
pre-existing duty does not constitute valid consideration.

1. unforeseen circumstances
2. statutes
3. reliance
4. mutual release
express conditions
rule: a condition is an event, uncertain to occur, that must occur before a party's obligation to perform arises.

rule: to determine whether an express condition exists, look at
1. language of K,
2. cop,
3. maxims, and
4. interpretation that reduces risk of forfeiture unless event is within control of the obligee.
excuses for nonoccurrence of condition
1. wavier (can occur after the time for the condition to occur)
2. forfeiture
3. prevention
wavier analysis for excuse of nonoccurrence of a condition
1. act of wavier

2. material or nonmaterial?

2a. material conditions (how important is the condition to the deal?); can only be waived with independent consideration or reliance.
2a(1) independent consideration?
2a(2) reliance?

2b. immaterial conditions need only words/actions

2b(1) if immaterial condition, has party retracted wavier?
rule: wavier of an immaterial condition can be retracted if the other party has not relied on it and it comes before the time for the occurrence of the condition has expired.
forfeiture analysis for nonoccurrence of a condition
1. condition is nonmaterial

2. party who benefited from the condition would not be prejudiced by the excuse of nonoccurrence of condition

3. other party would not suffer substantial economic harm if the nonoccurrence is not excused
total breach factors
1. material breach factors
2. harm of delay to party if other party given more time to cure
3. does K mention time is of the essence?
damages for

total breach

partial breach
total breach = actual + consequential

partial breach = actual damages only
anticipatory repudiation


1. definite & unequivocal stmt indicating that obligor will commit a breach
2. act which renders obligor unable to perform w/o breaching (impossible to perform)

1. await performance for rznble time
2. seek remedies for breach and suspend performance, or
3. salvage unfinished goods