Mbe Contracts, Strategies And Tactics

Front 1

Distinctions between common law and ucc : 3 big ones

Back 1

1. modifications

2. irrevocable offers

3. delays

Front 2

CL and UCC rule for modifications?

Back 2

AT common law, modifications require consideration.

Under UCC, modifications require only good faith

Front 3

Irrevocable offers: CL? UCC?

Back 3

CL, revokable UNLESS consideration (generally, offeree must pay for irrevocability, through an optino K)

Under UCC< merchants can make irrevocable or firm offers without consideration, IF in writing and signed (irrevocable, up to 3 mos.)

Front 4

DELAYS: UCC/ CL?

Back 4

CL, a reasonable delay is only a minor break, UNLESS K provides time is of essence, or breaching party knew essential deadline (if so, delay is major breach.

UCC = perfect tender rule, every dadline must be met. any delay = major breach. Know exceptions .

Front 5

Minor breach, the other party must

Major breach, the other party

Back 5

minor- perform and sue for damages

major - need not perform, and can sue for damages

Front 6

Exceptions to UCC perfect tender rule

Back 6

notice to buyer,

seller can cure defective perf. if time

or, if time for perf has passed, seller can cure if buyer rejected non-conforming tender that seller has R. grounds to beileve buyer would accept

Front 7

Unilateral v. Bi lateral contracts

rules

Back 7

an offer for a ilateral K seeks a promise in return, not performance. offer accepted w/ return promise

unliateral K seeks performance in return

Front 8

reward offer: unilateral or bilateral?

Back 8

unilateral k, seeking performance not promise

Front 9

ill pay you 50 bucks to paint my house. uni lateral or bilateral?

Back 9

could be either, when in doubt, bi lateral

Front 10

consideration =

Back 10

bargained for echange

Front 11

bargain is key word, both parties must view the return promise or performance as the "price of the K". If they don't?

Back 11

no consideration

Front 12

most impo. funcitn of baragain element is that it makes promises to make a gift

Back 12

unenforceable.

When it's a gift, promisor gets nothing in return.

Front 13

if you promise not to sure me ill give you 500 dollars.

even if invalid claim, still tehre is consideration if 2 req'ts met

Whose mindset matters? potential π or ∆?

Back 13

rp could believe claim is well founed

claim could be pursued in good faith

- person surrending claim is the mindset that matters. if potential plaintiff thinks it's a bad claim, no consideration. if good, consideration

Front 14

in unilateral contract, consideration is

Back 14

oferree's performance. period.

Front 15

Promissory estoppel, as last resort, can replace consdieration.

only availabla if

Back 15

there is no otherwise enforceable contract

Front 16

Quasi contract requires that there be

Back 16

no enforceable contract, if ther eis, no quasi-contract.

Front 17

quasi contract appropriate wehre

Back 17

∆ unjustly enriched

Front 18

CONDITIONS:

Back 18

trigger absolute duty to perform of 1 party to a K

Front 19

With conditions, categories into one of 3 categories

Back 19

express, implied, and constructive conditions

Front 20

Express condition

Back 20

parties eplicitly included in K

parties must comply (subst. performance won't suffice)

Front 21

When condition implied or constructive, substantial performance is

Back 21

sufficient (if perforamnce isn't complete, otehr party still has to pay K price, but may deduct actual damages from it)

Front 22

Second way to categorize conditions is by

Back 22

time of performance

Front 23

Two important categories of time of perforamcen

Back 23

conditions precedent and condidtions concurrent

Front 24

if no enforeable duty prior to condition / event happening?

Back 24

condition precedent

Front 25

concurrent conditions exist wher each party's duty to perfrom is conditioned on

Back 25

other party's performance

i.e. i'll sell you piano for 200. agreed. 200 dollars conditioned on bringing piano, vice versa. If seller doesn't perform, buy doesnt' apy

Front 26

INTERPRETATION: the general rule is that K terms are to be interpreted

Back 26

objectively, RP - knowing what parties know - would interpret terms how?

i.e. B doesn't know she has heart disease when she filled out life ins. app, not tryign to lie. RP, interpret, "truthfulness to best of my knowledge)

Front 27

7 types of basic contracts that generally fall within SOF

MP SIGNS

Back 27

1. Marriage (in consideration of, if you marry me)

2. Personal property > $5,000

3. suretyship

4. interest in land

5. goods >$500

6. Not performable w/in 1 yr

7. Securities

Front 28

SOF writing req't excused at COMMON LAW under 5 circumstances. what are they?

Back 28

1. full performance by both

2. seller conveys property buyer

3. buyer pays all or part of purchase price and possess or improves

4. promissory estoppel; and

5 waiver (not pleding SoF as defense)

Front 29

Under ucc, courts excutse writing whre

Back 29

part performance for goods, or an admission

also, specially manuf. goods don't require writing once seller begins manufactor or made commitments to procure good

letter of confirmation can also satisfy SOF if transaction btw merchants

Front 30

Main purpose exception to SOF for K of suretyship (one person promises to pay debts of another)

if main purpose to to further surety's own interest , then the promise

Back 30

does not fall iwithin the SOF

Front 31

Third party benficiaries, what if his rights have not vested?

Back 31

before that, parties can modify or resciend without regard to benficiary

Front 32

when does 3rd party beneficiary rights vest?

when 1/3 events occurs

Back 32

1. B manifests assent to the promise

2. B sues to enforce promise

3. B justifiably relis on promis.

3rd party ts doen't vest until he knows about it

Front 33

Assignment: What can be assigned?

Back 33

under both CL and ucc, only rights that can't be assigned are those that would materially cange the otehr party's duty, risk , or chance of receving return performance .

all others assigned

Front 34

Delegation: what can be delegated?

2 tier analysis

Back 34

1. ask if duty is personal? Yes? can't be delgted (personal where identify of person performing duty matters, ie lawyer). No? go to #2

2. does delgation materially alter performance, risk or burdens to party who'd receive performance? No? delegable

Front 35

K prohibitions on assignments and delegations

- validity depends on wording

1. assignment of rights under this K prohiited?

2. assignment of rights under K is void

3. K prohibits assigning of the K

Back 35

1. valid. otehr party can sue only for damages for breach of covenant

2. VOIDABLE at other party's option, but assignment of right to receive payment can't be prohibited

3. bars only delgation of duties, not assignment of rights (valid)

Front 36

Integration and prol evidence rule

what's a completely integrated agrement?

Back 36

parties intended to be final and comlete statement of agmt.

Front 37

Wht are the exceptions to the parol evidence rule?

Back 37

doesn't bar evidence of defects in k formation (lack of consideration )

also doesn't bar evidence when K 's effectiveness subject to oral or earlier written condition

Front 38

Whta happens if document isn't completely integrated?

Back 38

partially integrated doesn't mean open season on evidence

may be supplemented by consistent additional terms

Front 39

CAn you admit oral term that flatly contradicts a written term?

what if partial integrated or fully/

Back 39

don't worry about integration, partial or total, because in either case

the contradictory oral term can't be proved

Front 40

MBE CHECKLIST.

once you determine its a K question, ask if goods involved.

Back 40

if so, UCC article 2 appliles

Front 41

determine if contract exists

requiring

Back 41

offer, acceptance, and consideration

Front 42

when told one party wins the case, and that seems wrong, tehe best reponse will probably

Back 42

address your doubts

Front 43

distinguish thrid party beneficiaries and assignees

beneficiary is created ______________

Asignee gains rights _____

Back 43

B created in the CONTRACT

Assignee gaisn rights only later, when party trasnfers K rights