Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/50

Click to flip

50 Cards in this Set

  • Front
  • Back
does the ucc apply?

i. Uniform commercial code applies for the sale of goods. Goods are movable items.
sale of a good
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.
merchants
formation

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

three things in offer rule
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.
offer

is the offer still open
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.
offer:

revocation
formation

unqualified assent to the terms of the offer (Mirror Image Rule).
acceptance: common law
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.
acceptance

bilateral v. unilateral contracts
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.
acceptance

UCC
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:
acceptance

battle of forms
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.
acceptance:

Battle of Forms

Additional Terms
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.
Accetpance:

Battle of Forms:

Different Terms
formation

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

battle of forms

non merchants
formation

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

mail box rule
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.
acceptance

mail box rule
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
acceptance:

mail box rule
formation:

i. Rule: Bargain for exchange of legal detriment.
consideration
formation:

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

no consideration promissory estoppel
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.
defenses to formation:

unconscionability
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).
defenses to formatoin:

statue of frauds
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
defense to formation
statute of frauds

marriage
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
defense to formation

statute of frauds

real property
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
defense to formation: statute of frauds

Debt or Default of Another
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
defense to formation:

statute of frauds:

contracts not performed whole for one year
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
defense to formation: stattue of frauds:

goods over 500 UCC
formation:

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

exception for those above
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.
Merchants Confirming Memo (ONly UCC and ONLY MERCHANTS)
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.
modificatoin
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.
construction: Parole Evidence Rule
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.
constructoin Parole Evidence Rule Elements
Formation:

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


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

i. Impossibility, impracticability, and frustration of purpose?
discharge
performance:

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

Impossibility: Impracticability: Frustration of Purpose
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.
discharge: impossibility
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.
discharge: impracticability
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.
discharge: frustration of purpose
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.
breach - minor breach
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
third party beneficiaries:

intended beneficiary
third party rights:

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

incidental beneficiary
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.
third party beneficiaries:

Vesting
Third party Rights:

i. All rights are assignable, unless assignment will materially increase the risk or burden. Consideration is not required.
Assignments and Delegations
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.
Damages
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.
Restitution:

Specific Performance
Remedies:

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

rescission
remedies:

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

reformation
remedies:

1. Unreasonable delay which causes undue prejudice.
defenses:

laches
remedies:

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

unclean hands
quasi contract:

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