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58 Cards in this Set

  • Front
  • Back
definition of legal consideration
bargained for legal benefit or detriment
preexisting legal duty exception
promisor's agreement to do more than she honestly and reasonably believes is required

is sufficient consideration for new promise
When debt discharged in bankruptcy, what is effect of part payment of debt?
Revives the whole debt
Effect of seal in MA
conclusive presumption of adequate consideration IF signed, sealed, and delivered

** actual seal not necessary, can recite that are sealedin addition to L.S. after signature
** doesn't satisfy consideration requirement in options contracts
How long do people have to exercise rights under written contract?
1. as stated in contract

2. if not stated, then a reasonable time restriction is imposed
Illegality of contracts made on sunday
1. tons of exceptions, including contract for sale or residential real estate made on sunday

2. If no exception, is not effective when made on Sunday. But can be impliedly adopted through subsequent conduct on secular day.
enforceability of contracts that breach the corporate duty of loyalty
Contract for personal gain of corporate fiduciary

that could cause breach of fiduciary duty of loyalty to corp

are genreally unenforceable as against public policy
At what age can one enter into a contract?
1. life insurance if 15 or older

2. auto insurance if 16 or older

3. age of majority is 18
When is oral contract for sale of land enforceable?
SOF in contract for land is satisfied by performance when all three of following:

1) possession
2) payment
3) improvements
Promise to make a will: requirements
Is within statute of frauds. Requires writing to be enforceable.
Oral settlements made in open court: within sof?
No, sof not applicable
Clause requriing party to relinquish right to jury trial
enforceable absent fraud or overreaching
Clause committing parties to arbitration
enforceable absent fraud or overreaching
adhesion contracts
enforceable unless:

1. unconscionable
2. offensive to public policy or
3. unfair under circumstances
Price unconscionability
gross disparity of consideration accompanied by other relevant factors

can make a contract unconscionable
Rules on wage assignments in MA
1. less than 3K must be in writing, approved by employer and spouse of employee, and filed with clerk of city

2) assignment valid for no more than one year

3) must state that 10$/week is exempt from assignment

_____
Same rule for assignments of over 3K except
1) 3/4 of wages are exempt.
2) valid for up to 2 years
anticipatory repudiation
MA doesn't recognize in non-ucc contracts

Exceptions, will recognize in
* suits for specific performance of conveyance of real estate
* action in quantum meruit
* action for recession
* when anticipatory reputidation accompanied by actual breach
Excuse of conditions by substantial perofrmance
1. MA requires that all conditions be perfectly performed

2. recovery in quasi-contract if failure not substantial
Can employee recover wages for time worked when employee breaches?
Yes, unless breach was intentional
liquidated damages in real estate sales
Enforced if sum agreed upon represents

a reasonable estimate of the actual damages at the time of contract formation
obligation of good faith
implied in every contract in massachusetts

requires honest dealing
charitable pledges, when enforceable?
When oral or written promise:

1) consideration
OR
2) reliance
Can contract modifications be retracted unilaterally?
No.
Second acceptance of allegedly defective goods
Can't revoke if have continued use of allegedly defective goods

This is a second acceptance.

**unless reasonable under the circumstances, then can reject
presumption that vendors are fully informed of product's risks at time of sale
Violates implied warranty of merchantability if lack of adequate warning

regardless of fault of vendor
Disclaimsers of implied warranties
Absolutely invalid
Can contract for consumer goods or manufacture limit remedy to repair?
Not unless retailer/manufacutere has a repair facility in MA
Warranties--how far do they extend?
Extended by statute to "all persons who the manufacturer or seller might reasonably expect to use, consume or be affected by the goods
may buyer deduct damages from breach from price of goods?
Yes, upon notifying seller of intent to do so.
How can atty elicit testiomny from expert?
1. if personal knowledge, can ask "on basis of info, what is your expert opinion"?

2. if no personal info, msut present question as hypo
On what facts cna expert base opinion
1. admissible
and
2. customarily relied on by experts in a particular field
Can doctor render opinion on medical issue withotu having examined or treated patient?
Yes, by statute, if
1) report states doctor's basis ofknowedge
Can experts give opinion on ultimate issue
No, unless opinoin touches on ultimate issues and will aid jury in making final determination
Can experts testify that sexual abuse in fact occured?
No can't give opinion on ultimate issue. Intrude on jury's province to evaluate witness credibility
polygraph info admissible
Not in criminal trials

Maybe if can show reliability of test.
scope of cross ex
Not limtied to direct

Can cross on any relevant matters
Can one impeach own witness?
Yes, but only by contradiction by prior inconsistent statements
Must foundation be laid for prior inconsistent statement impeachmetn?
Only when impeaching own witness
polygraph info admissible
Not in criminal trials

Maybe if can show reliability of test.
scope of cross ex
Not limtied to direct

Can cross on any relevant matters
Can one impeach own witness?
Yes, but only by contradiction by prior inconsistent statements
Must foundation be laid for prior inconsistent statement impeachmetn?
Only when impeaching own witness
When permissible to impeach by evidence of prior convictions
1. when convictions
2. felonies or misdemeanors
3. when against accused, judge balances danger of unfair prejudice against probative value of evidence
4. court can't exclude when offered against non-defendant witness
When is conviction too remote to be admitted?
fELONy
1. w/in 10 years
2. or if convicted if another crime within 10 years of time of testifying

MISDEMANOR
1. w/in 5 years
2. or if witness convicted of another crime within 5 years of testifying
admissibility of juvenile records
Not admissible against child for any purposes in any court proceeding
Can a pardoned person be impeached for that crime?
Yes unless

1) can show that pardon granted for rehabilitation
and
2) record subsequently sealed
impeachment by specific instances of misconduct
not allowed in ma
impeachment by proof of reputation
Can testify to another's reputation for veracity in business and professional circles and community
impeachment by opinion
not allowed in ma

Can't say "in my opinoin" but can give reputation
When is rehabilitation after impeachment allowed in MA?
Only when first witness impeached with:

past convictions OR
bad reputation for veracity (bad character)
when can error on appeal be based on exclusion of evidence
only when offer of poof made

after sustained objection by opposing counsel
Do privileges survive death of clietn or patient?
Yes, bleong to executor
impeachment by proof of reputation
Can testify to another's reputation for veracity in business and professional circles and community
impeachment by opinion
not allowed in ma

Can't say "in my opinoin" but can give reputation
When is rehabilitation after impeachment allowed in MA?
Only when first witness impeached with:

past convictions OR
bad reputation for veracity (bad character)
when can error on appeal be based on exclusion of evidence
only when offer of poof made

after sustained objection by opposing counsel
Do privileges survive death of clietn or patient?
Yes, bleong to executor
crime fraud exceptoin
no atty client privilege if services of lawyer to enable to commit or plan crime that

client knew or reasonably should have known to be a crime or fraud.