K

Front 1

elements for p/e

Back 1

1) promise
2) detrimental reliance
3) promisor expects reliance
4) promise induced reliance
5) unjust not to enforce

Front 2

elements for p/r

Back 2

1) benefit conferred
2) promise by benefited party
3) benefit not gratituous
4) promisor unjustly enriched
5) benefit induced promise

Front 3

maxims of interpretation

Back 3

1) in light of circumstances
2) prevailing meanings
3) cop, cod, tu

Front 4

preference in interpretation

Back 4

1) rznble interpretation
2) express terms > cop > cod > tu

Front 5

elements for doctrine of rznble expectations

Back 5

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

Front 6

total integration exceptions for PER

Back 6

1) oral condition precedent to formation
2) collateral agreement rule
3) ambiguity as to interpretation
4) invalidity (fraud)
5) reformation

Front 7

PER: elements for collateral agreement rule

Back 7

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

Front 8

PER: elements for interpretation exception

Back 8

classical: plain meaning rule
r2d: permits extrinsic evidence

Front 9

express warranty

Back 9

1) affirmation of fact or promise
2) relates to goods
3) basis of bargain

Front 10

what is an affirmation of fact or promise?

Back 10

something objectively measurable, specific, trade usage, words

Front 11

three interpretations for "basis of bargain"

Back 11

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.

Front 12

1) How would seller rebut reliance?

2) What if seller made affirmations of fact on delivery after the deal closed?

Back 12

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.

Front 13

implied warranty of merchantability

Back 13

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.

Front 14

IWM: what makes a good merchantable?

how do you prove that a product is not merchantable?

Back 14

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.

Front 15

what is the scope of the IWM?

Back 15

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

Front 16

implied warranty for a particular purpose

Back 16

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

Front 17

disclaimers/modification of warranties

Back 17

-cannot disclaim express warranties
... BUT PER!

-MUST mention "merchantability" and be conspicuous

-MAY disclaimer verbally or in writing

-Use disclaimer language provided in statute

Front 18

implied warranty of habitability

Back 18

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.

Front 19

how does a buyer show a breach of warranty?

Back 19

show that the good was nonconforming to the affirmation of facts or promise

Front 20

what warranty defenses are available to the seller?

Back 20

1) Opinions are not warranties
2) Disclaimers
3) Privity
4) Buyer's inspection
5) Buyer's failure to notify of nonconforming goods

Front 21

minor incapacity & exceptions

Back 21

voidable if under 18.

exceptions:
-doctrine of necessaries
-fraud
-rznble time for disaffirmance upon majority

Front 22

mental incapacity & exception

Back 22

1) unable to understand or act rznbly in relation to transaction
2) other party has rzn to know of condition
... then voidable

exception:
1) fair terms
2) w/o knowledge
3) avoidance would be unjust

Front 23

1) physical duress

2) duress

3) economic duress

Back 23

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)

Front 24

duress: what is an improper threat?

Back 24

1. not to pay an acknowledged debt in bad faith

2. threat is a crime/tort

Front 25

undue influence

Back 25

1. victim unduly susceptible
2. excessive pressure
... voidable

if induced by 3rd party, then voidable unless innocent party

Front 26

duress, undue influence, misrepresentation:

innocent party

Back 26

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

Front 27

misrepresentation
(other party, 3rd party)

1) fraudulent misrepresentation
2) material misrepresentation

Back 27

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)

Front 28

misrepresentation:
unjustified reliance on opinions & exceptions

Back 28

gr: recipient not justified in relying on opinion

exceptions
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)

Front 29

assertions = opinions when...

exceptions

Back 29

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

exception:
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

Front 30

non-disclosure

Back 30

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

Front 31

public policy

Back 31

term may be unenforceable if
1. legislation provides, or
2. interest in enforcement outweighed by public policy concerns

Front 32

public policy: ancillary restraints on competition & remedies

Back 32

1. ancillary promise to K
2. unreasonable restriction
3. hardship on restricted party
4. injurious to the public

remedies
1. blue pencil rule
2. invalidate agreement
3. rewrite agreement

Front 33

bearing risk

Back 33

1. by agreement
2. party proceeds into K treating his limited knowledge as sufficient
3. implied due to cop, cod, tu

Front 34

mutual mistake

Back 34

1. mistake at time of formation
2. both parties mistaken
3. to basic assumption of K
4. party seeking recission did not bear risk

Front 35

unilateral mistake

Back 35

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

Front 36

impossibility by death/incapacity

impossibility by destruction/deterioration/failure

Back 36

death/incapacity
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


destruction/deterioration/failure
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

Front 37

UCC casualty to goods

Back 37

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

Front 38

Impracticability
(impossible > impractical > inconvenient)

Back 38

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

Front 39

Frustration of Purpose

Back 39

(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

Front 40

Modification

Back 40

(1) mutual assent
(2) consideration

Front 41

Modification:
pre-existing duty rule & exceptions

Back 41

pre-existing duty does not constitute valid consideration.

exceptions:
1. unforeseen circumstances
2. statutes
3. reliance
4. mutual release

Front 42

express conditions

Back 42

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.

Front 43

excuses for nonoccurrence of condition

Back 43

1. wavier (can occur after the time for the condition to occur)
2. forfeiture
3. prevention

Front 44

wavier analysis for excuse of nonoccurrence of a condition

Back 44

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.

Front 45

forfeiture analysis for nonoccurrence of a condition

Back 45

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

Front 46

total breach factors

Back 46

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?

Front 47

damages for

total breach

partial breach

Back 47

total breach = actual + consequential

partial breach = actual damages only

Front 48

anticipatory repudiation

r2d

UCC

Back 48

r2d
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)

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