Legal Analysis - Contracts

Front 1

does the ucc apply?

i. Uniform commercial code applies for the sale of goods. Goods are movable items.

Back 1

sale of a good

Front 2

does the ucc apply?

i. Merchants are persons who regularly deal with goods of the kind.
ii. If they are merchants say, special rules for merchants apply.

Back 2

merchants

Front 3

formation

i. Is it still open and what are its Terms?

Back 3

offer

Front 4

formation

1. An expression of the intent to be bound (promise, undertaking, commitment).
2. Has to have definite and certain terms
a. Common Law (qtips)
i. Quantity Involved
ii. Time of Payment
iii. Identify the Offeree and Subject Matter
iv. Price to be Paid
v. Nature of Work
b. UCC requires quantity, and then the courts will use gap fillers as long as we have quantity.
3. Communicated to the Offeree

Back 4

offer

three things in offer rule

Front 5

formation

1. If there is consideration then the offer does not terminate it stays open.
2. Firm Offer Rule Under UCC for Merchants: firm offer applies where the offeror is a merchant, the offer is in writing and it says that it is going to remain open. If no time period, then reasonable time is 3 months.

Back 5

offer

is the offer still open

Front 6

formation

a. Can be Expressed or Implied
i. Implied: where the offeree receives information from a reliable source that would indicate to a reasonable person that the offer has been terminated can have an effective revocation.
b. Revocation is effective upon receipt.

Back 6

offer:

revocation

Front 7

formation

unqualified assent to the terms of the offer (Mirror Image Rule).

Back 7

acceptance: common law

Front 8

formation

1. Bilateral: Acceptance through Promise for a Promise.
2. Unilateral: accept through performance. Undertake a performance and have not completed it, can go through quasi contract.

Back 8

acceptance

bilateral v. unilateral contracts

Front 9

formation

1. Shipment of conforming or non conforming goods is acceptance; unless it is meant to be an accommodation then it is a counter offer.

Back 9

acceptance

UCC

Front 10

formation:

1. Under the UCC they no longer require the mirror image of acceptance, instead they treat additional or different terms in the following way:

Back 10

acceptance

battle of forms

Front 11

formation:

i. Merchants: Where the parties are merchants they are considered additions to the contract unless there has been an objection within a reasonable time, it materially changes the parties obligations, or the offer expressly limits acceptance to the terms of the offer.

Back 11

acceptance:

Battle of Forms

Additional Terms

Front 12

formation

i. Merchants: Courts are split for additional terms or the Knock Out Rule. Knock the provision out and use the UCC gap fillers to tell use the rule.

Back 12

Accetpance:

Battle of Forms:

Different Terms

Front 13

formation

Knock them out entirely and limits to the terms of the offer for the contract.

Back 13

acceptance

battle of forms

non merchants

Front 14

formation

1. General Rule: offer, rejection and revocation and affective upon receipt. Acceptance is effective on dispatch.

Back 14

acceptance

mail box rule

Front 15

formation:

2. Things to Look For: The acceptance has to have a stamp on it and has to be properly addressed. Unless – 1. The offer requires receipt, or 2. Where it is an option contract.

Back 15

acceptance

mail box rule

Front 16

formatoin:

3. Example: If you have a Rejection dispatched before an acceptance, then it is whoever gets there first. If the acceptance arrives first then we have a contract, if the rejection arrives first then no contract

Back 16

acceptance:

mail box rule

Front 17

formation:

i. Rule: Bargain for exchange of legal detriment.

Back 17

consideration

Front 18

formation:

ii. No Consideration Promissory Estoppel: Reasonable and foreseeable reliance on a promise. Then it is a quasi contract problem.

Back 18

consideration:

no consideration promissory estoppel

Front 19

formation:

Always remember that we are looking for unconscionability at the time of the making of the contract. AT THE TIME OF MAKING THE CONTRACT!!! At the time of the meeting of the minds there is some kind of procedural or substantive unfairness. Unequal Bargaining Power.

Back 19

defenses to formation:

unconscionability

Front 20

formation:

1. General Rule: To satisfy the statute of frauds contracts for MR. DOG S(all)P(all but marriage)MFR (last three specific to there last three).

Back 20

defenses to formatoin:

statue of frauds

Front 21

formation:

a. Must be in writing, but if there isn’t a writing look at the exceptions. Look at admission.
b. Says Admits in Court

Back 21

defense to formation
statute of frauds

marriage

Front 22

formation:

a. Performance: Works to pull all of them out of the statute of frauds. Real Property: is payment and possession.
b. Says Admits in Court

Back 22

defense to formation

statute of frauds

real property

Front 23

formation:

a. Maker Benefits: if they fully perform don’t need a writing.
b. Performance: Works to pull all of them out of the statute of frauds. Real Property: is payment and possession.
c. Says Admits in Court

Back 23

defense to formation: statute of frauds

Debt or Default of Another

Front 24

formation:

a. Performance Works to pull all of them out of the statute of frauds. Real Property: is payment and possession.
b. Says Admits in Court

Back 24

defense to formation:

statute of frauds:

contracts not performed whole for one year

Front 25

formation:

a. Receipt of Goods: plus party payment and acceptance.
b. Performance Works to pull all of them out of the statute of frauds. Real Property: is payment and possession.
c. Says Admits in Court

Back 25

defense to formation: stattue of frauds:

goods over 500 UCC

Front 26

formation:

a. Performance: Works to pull all of them out of the statute of frauds. Real Property: is payment and possession.

Back 26

defense to formatoin:

exception for those above

Front 27

formation:

where there are two merchants, and one party sends written confirmation of agreement within a reasonable time the other party is bound if they: (1) have reason to know of contents of the memo, (2) don’t object within 10 days.

Back 27

Merchants Confirming Memo (ONly UCC and ONLY MERCHANTS)

Front 28

formatoin:

i. Common Law: have to have mutual assent and consideration in common law. Don’t need a writing to modify it unless it is governed by the statute of frauds.
ii. UCC: don’t need to have consideration, just needs mutual assent.

Back 28

modificatoin

Front 29

formation:

: evidence of agreements made prior to or contemporaneous with the contract that is intended to be the final expression of the parties agreement may not be introduced to contract the terms of the writing.

Back 29

construction: Parole Evidence Rule

Front 30

Formation:

1. Final Expression
2. Full Integration: if there are additional terms that would naturally be made in a side agreement or separate understanding by parties then it is a partial integration.
3. Does this agreement contradict the terms of does it supplement the terms: cannot introduce if it contradicts, but might be able to supplements.
4. Is the Agreement Outside the Scope of the parole evidence rule:
a. Later Deals with Subsequent Negotiations then parole evidence does not apply to it.
b. Anything that would show that there was not an actual meeting of the minds and no mental agreement.
c. Where you are trying to reform a contract, can bring it in to show what the ambiguous terms meant.

Back 30

constructoin Parole Evidence Rule Elements

Front 31

Formation:

consistent additional terms are admissible or the parties intended it to be a FULL and FINAL integration.

Back 31

construction: UCC

Front 32

Performance:


an event other then the passage of time that will extinguish, modify, limit, or create a duty to perform.

Back 32

Conditions

Front 33

Performance:

i. Are they satisfied or were they excused?
ii. When a condition fails it is going to excuse the performance.
iii. Analyzing Condition:
1. Is it expressed or implied: Expressed if it is in the contract and if not it is implied.
2. Did the condition excuse the parties performance:
a. Breach
b. Excused: can be excused where there is -
i. Anticipatory repudiation: someone hasn’t actually breached the contract yet. They are just saying that they are going to breach by there conduct. Going to occur but hasn’t happened yet. (1) Here we can sue immediately. (2) Can suspend our own performance. (3) Can ignore and urge the party to perform “adequate assurances”.

Back 33

conditions

Front 34

performance:

i. Impossibility, impracticability, and frustration of purpose?

Back 34

discharge

Front 35

performance:

ii. Performance by the parties is completely discharged in three ways (Usually Come Up As A Trio):

Back 35

discharge:

Impossibility: Impracticability: Frustration of Purpose

Front 36

Performance:

(NON UCC) a supervening event that is unforeseeable and neither party assume the risk of hit happening and cause an objective failure, meaning that no one could perform the contract. Example: It happens when a law makes it illegal for you to perform and was not foreseeable. Illness of a specific performer, or someone dies are other examples.

Back 36

discharge: impossibility

Front 37

performance:

Occurrence of the event the parties assume would not occur. This makes performance difficult or unavailable. It has to be an extreme and unreasonable difficulty.

Back 37

discharge: impracticability

Front 38

performance:

where an event destroys the objective purpose of the contract. Both parties must have known the purpose of the contract and the event cannot be one that was foreseeable.

Back 38

discharge: frustration of purpose

Front 39

performance:

minor breach where the parties have gained a substantial benefit of there bargain. If they gained a substantial benefit then it is a minor breach and if not it is a major breach.

Back 39

breach - minor breach

Front 40

thrid party rights:

the parties intended to benefit the person and performance is rendered directly to the third party. Are they are creditor or a donee. Donee they are receiving it as a gift. Creditor receive for an obligation

Back 40

third party beneficiaries:

intended beneficiary

Front 41

third party rights:

incidentally benefit from the contract. The purpose of the contract was not to benefit them. They have no rights.

Back 41

third party beneficiaries:

incidental beneficiary

Front 42

third party rights:

once their rights vest you can’t modify without them. Rights Vest: (1) manifest assent in a manner requested by the parties, (2) they bring a lawsuit to enforce a promise, or (3) they materially change there position in detrimental reliance of a promise.

Back 42

third party beneficiaries:

Vesting

Front 43

Third party Rights:

i. All rights are assignable, unless assignment will materially increase the risk or burden. Consideration is not required.

Back 43

Assignments and Delegations

Front 44

REmedies:

i. Are they causal?
1. Foreseeable (at the time of formation)
2. Certain (speculative)
3. Unavoidable (duty to mitigate damages)
ii. Liquidated Damages: difficult to ascertain and reasonable estimate of what damages would be.

Back 44

Damages

Front 45

Remedies:

1. Requires (1) a valid contract with definite and certain terms, (2) inadequate legal remedy, (3) has to be feasible to enforce the agreement, (4) security and performance.

Back 45

Restitution:

Specific Performance

Front 46

Remedies:

1. Where a parties is attempting to rescind the contract they are going to have fraud, or misrepresentation, or mistake.

Back 46

Restitution:

rescission

Front 47

remedies:

1. Is the reforming of the agreement where it reflects what the parties intended it to be.

Back 47

restitution:

reformation

Front 48

remedies:

1. Unreasonable delay which causes undue prejudice.

Back 48

defenses:

laches

Front 49

remedies:

1. Can’t come with unclean hands and ask for a remedy.

Back 49

defenses:

unclean hands

Front 50

quasi contract:

a. A remedy that the courts use to enforce unjust enrichment.

Back 50

quasi contract