Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
82 Cards in this Set
- Front
- Back
|
Firm Offer |
Must be in writing Must be signed by merchant |
|
|
What is the maximum duration of a firm offer? |
3 months |
|
|
If rejection is sent before acceptance? |
The first letter to arrive wins |
|
|
When will a counteroffer not result in a contract under UCC? |
If you materially change terms If I reject within reasonable time |
|
|
Is giving back a gift valid consideration? |
No |
|
|
Is a promise to give a gift valid consideration? |
No |
|
|
Promise to pay money after you saved my dog? |
Not enforceable |
|
|
Promise to pay a debt that is barred by the statute of limitations? |
Enforceable!! |
|
|
Promise to pay a debt that was discharged by bankruptcy? |
Enforceable |
|
|
Promissory estoppel? |
Detrimental reliance and injustice |
|
|
I give you a check for part of an undisputed amount owed? |
You can accept the check and still get the other part owed |
|
|
I owe you money, but I don't have it so we agree to a new lower amount? |
You can't come after me for the old debt |
|
|
I pay you part of a disputed amount |
If you accept, that's what you get and nothing else |
|
|
Contract with a minor |
Voidable, but can ratify at 18 |
|
|
Contract for necessities with a minor? |
they must pay the reasonable cost of the goods/services |
|
|
Contract with person who is mentally ill/insane? |
Contract is null and void |
|
|
Duress v. undue influence? |
Wrongful threat v. unfair bargaining position |
|
|
Unconscionability? |
Must be unfair at the time the contract was made, not after a boom in demand |
|
|
Unilateral mistake? |
Only a defense if other side knew I was mistaken or there was a clerical error |
|
|
Remedy for mutual mistake? |
Rescission |
|
|
Intentional misrepresentation? |
Saying something I knew or should have known was false with the intent to induce |
|
|
Negligent misrepresentation? |
I forgot to tell you something or left something out and you relied on that |
|
|
Non compete clause |
Must be reasonable |
|
|
Requirement of statute of frauds |
Must be in writing |
|
|
What is subject to the statute of frauds |
Marriage Year Land Executor of an estate Goods of $500 or more Surety |
|
|
What does the writing require under SOF? |
Parties Subject matter Material Terms Signed by person to be charged |
|
|
When does SOF not apply to "Year" contract? |
If services have been fully performed |
|
|
When does SOF not apply to "Land' contract? |
If payment + possession or improvements |
|
|
When does SOF not apply to "Surety" contract? |
If purpose of guaranteeing the debt is to benefit myself |
|
|
When does SOF not apply to "Goods" contract? |
1. If some of the payment or part of the goods have been submitted 2. If merchant sends a written confirmation of the order, is signed by the merchant, includes quantity and other side doesn't object within 10 days of receipt |
|
|
When is parol evidence always admissible |
Fraud Mistake Duress Condition Precedent Course of Dealing Trade Custom |
|
|
Modification at common law? |
Requires additional consideration |
|
|
Modification at UCC? |
Requires good faith |
|
|
No carrier - risk of loss if seller is a merchant? |
Risk is on seller until buyer takes possession |
|
|
No carrier - risk of loss if seller is not a merchant? |
Risk is on seller until he tenders the goods/makes goods available to the buyer (they're ready to go) |
|
|
Carrier - risk of loss in shipment contract? |
Risk of loss shifts to buyer once goods are delivered to carrier |
|
|
Sample language of shipment contract |
FOB Seller |
|
|
What is the default - shipment or destination contract? |
Shipment |
|
|
Carrier - destination contract - risk of loss? |
Risk of loss shifts to the buyer when goods are delivered to the correct destination |
|
|
Sample language destination contract? |
Anything that is not FOB Seller |
|
|
If a condition is not performed? |
Other party is discharged from performance unless 1) waiver of condition; 2) bad faith; 3) avoiding forfeiture (suffering a great loss) |
|
|
If seller had reasonable grounds for thinking that buyer would accept nonconforming goods, then seller can cure if... |
Notice is sent to buyer and correct goods are delivered in a reasonable amount of time |
|
|
If you receive nonconforming goods before due date, then seller can cure if: |
They send reasonable notice and deliver conforming goods on time |
|
|
Do I have the right to cure in an installment contract? |
Yes if it can be fixed |
|
|
When is impossibility not a defense? |
If parties contemplated it If it is only temporary |
|
|
If a party unequivocally repudiates the contract? |
You can sue ASAP |
|
|
Time for responding to a demand for assurance of performance? |
Reasonable time If UCC - within 30 days |
|
|
Must a demand for assurance of performance be in writing? |
Only for UCC |
|
|
When can a repudiation not be revoked? |
Other side has sued Other side accepted the repudiation Other side relied on the repudiation |
|
|
Definition of expectation damages? |
Put you in the position had the contract been performed |
|
|
Equation for expectation damages? |
Contract price - what you already received + extra costs |
|
|
Requirement of expectation damages? |
Must be foreseeable with reasonable certainty |
|
|
Definition of reliance damages? |
Put you in the position you were before the contract |
|
|
Equation for reliance damages? |
Unreimbursed costs + not sure if I can get expectation damages |
|
|
Definition of restitution damages? |
Get back the value you gave someone else |
|
|
Can you get restitution and expectation damages? |
No |
|
|
Equation for restitution damages |
Market value of services you gave |
|
|
Definition of consequential damages? |
Foreseeable costs due to your breach |
|
|
Definition of incidental damages? |
Out of pocket expenses |
|
|
Definition of liquidated damages? |
Determined at the time we made the contract |
|
|
Requirement for liquidated damages? |
Must be reasonable and not a penalty (not more than 10% of contract price) |
|
|
What damages should a breaching party seek? |
Quantum meruit |
|
|
Equation for quantum meruit? |
Reasonable value of your services - damage you caused |
|
|
If seller wants to recover and goods haven't been resold yet? |
Contract price - market price |
|
|
If seller wants to recover and goods have been resold? |
Contract price - resell price + incidental damages in reselling them |
|
|
Lost volume seller (lost profits)? |
Expected profit + my costs - resale price |
|
|
If buyer wants to recover and he already purchased replacement goods? |
Contract price - cost of replacement goods |
|
|
If buyer wants to recover and he hasn't purchased replacement goods yet? |
Contract price - market price at the time you learned of the breach |
|
|
Three equitable remedies? |
Specific performance Injunction Rescission |
|
|
When is specific performance permitted? |
Unique item or sale of land |
|
|
When is injunction permitted? |
To prevent irreparable harm (employment contracts, trade secrets) |
|
|
When is rescission proper? |
Mistake Misrepresentation Lack of capacity Duress |
|
|
If an incidental beneficiary relied on our contract, does he have rights to enforce? |
No |
|
|
When can an intended beneficiary sue? |
He learned of contract and relied He was told about contract and accepted |
|
|
Clause says assignment is prohibited? |
Assignment is still valid, but can sue for breach |
|
|
Clause says assignment is void? |
Any assignment would be invalid |
|
|
Clause says there shall be no delegation of duty? |
Then you may not delegate |
|
|
Assignments and delegations are generally... |
valid |
|
|
Is notice required for assignment or delegation? |
No |
|
|
Does other party have to agree in advance to assignment or delegation? |
No |
|
|
When can you not sue the person who assigned their duty? |
If you executed a novation/release |
|
|
When is assignment not valid? |
Unique/personal service only I can perform (applies to expertise too) ; or Assignment would materially risk that you won't get your performance (ex: lack of experience, insolvency, business trouble) |
