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22 Cards in this Set

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Where only one party entering into a ccontract is mistaken relating to an agreement, how will that unilateral mistake be treated?
Where only one of the parties entering into a contract is mistaken about facts relating to the agreement, that unilateral mistake will not prevent formation of a contract. However, if the nonmistaken party is or had reason to be aware of the mistake made by the other party, the contract is voidable.
Describe the concept of unconscionability.
The concept of unconscionability concerns clauses in a contract that are so one-sided as to be unconscionable under the circumstances existing at the time the contract was formed, not unilateral mistakes. The unconscionability concept is often applied to one-sided bargains where one of the parties has substantially superior bargaining power.
Where only one party entering into a ccontract is mistaken relating to an agreement, how will that unilateral mistake be treated?
Where only one of the parties entering into a contract is mistaken about facts relating to the agreement, this unilateral mistake will not prevent formation of a contract unless the nonmistaken party is or had reason to be aware of the mistake made by the other party.
Describe the result when both parties entering into a contract are mistaken about facts relating to the agreement.
When both parties entering into a contract are mistaken about facts relating to the agreement, the contract may be voidable by the adversely affected party if, among other things, the mutual mistake concerns a basic assumption on which the contract is made
Descride the concept of anticipatory repudiation.
Anticipatory repudiation occurs where a promisor, prior to the time set for performance of her promise, indicates that she will not perform when the time comes. Anticipatory repudiation serves to excuse conditions if: (i) there is an executory bilateral contract with executory duties on both sides; and (ii) the words or conduct of the promisor unequivocally indicates that she cannot or will not perform when the time comes.
Do minors have the ability to enter into a contract?
Minors generally lack capacity to enter into a contract binding on themselves. Therefore, minors may plead lack of capacity and disaffirm most contracts, even though such contracts are binding on the adult party. Disaffirmance discharges the minor's liability under the contract
If a period of acceptance is stated in an offer, within what period must the oferee respond to signal acceptance?
If a period of acceptance is stated in an offer, the offeree must accept within that period to create a contract. Failure to timely accept terminates the power of acceptance in the offeree (i.e., a late acceptance will not be effective and will not create a contract).
Under the mailbox rule, when is an acceptance generally efective?
Under the mailbox rule, an acceptance generally is effective upon dispatch (i.e., the acceptance creates a contract at the moment it is mailed or given to the telegraph company). However, the mailbox rule does not apply where the offer states that acceptance will not be effective until received.
What are the the difference between a condition precedent, concurrent, and subsequent?
A condition precedent is one that must occur before an absolute duty of performance arises in the other party. Conditions concurrent are those that are capable of occurring together, as where property is tendered in exchange for cash. A condition subsequent is one that cuts off an already existing duty of performance.
What rights does a seller have when a buyer breeches contrack by repudiating its offer?
When a buyer breaches by repudiating its offer the seller has a right to (1) recover its incidental damages plus (2) either the difference between the contract price and the market price (3) or the difference between the contract price and the resale price of the goods. (4) If neither measure is adequate to put the seller in as good a position as performance would have, she may recover lost profits.
What is the exception to the general rule that a contract will not be avoided by a unilateral mistake?
Although the general rule is that a contract will not be avoided by a unilateral mistake, there is an exception where the nonmistaken party either knew or should have known of the mistake
What is the purpose of contract damages?
The purpose of contract damages is to put the nonbreaching party into as good a position as it would have been had the breaching party fully performed
When are liquidated damages clauses enforceable?
Liquidated damages clauses are enforceable only if damages were difficult to estimate at the time the contract was formed, and the amount agreed upon is a reasonable forecast of the damages that would result from a breach.
Does a party have an obligationto perform if a condition precedent has not yet been performed?
A party does not have a duty to perform if a condition precedent to that performance has not been met.
What makesa breach material?
A breach is material if, as a result of the breach, the nonbreaching party does not receive the substantial benefit of her bargain. If the breach is material, the nonbreaching party (i) may treat the contract as at an end (any duty of counterperformance is discharged), and (ii) has an immediate right to all remedies for breach of the entire contract, including total damages. (Note that a minor breach, if coupled with anticipatory repudiation, is treated as a material breach.)
When is specific performance available?
Specific performance is only available where the legal remedy (i.e., money damages) is inadequate. Money damages can be inadequate for a number of reasons, such as where the goods or services sought are unique
What result when a contract to build's subject matter is accidently destroyed? How is this differnt from when a contract to repair's subject matter is destroyed?
When a contract to build's subject matter is accidentally destroyed (e.g., a house that is almost finished being built is destroyed by accidental fire), the builder's performance is not discharged by impossibility because the builder is still capable of starting over and rebuilding. However, when a contract to repair's subject matter is accidentally destroyed (e.g., a house getting a new roof is destroyed by accidental fire), the repairer's performance is discharged by impossibility because there is nothing left to repa
How does a novation affect a duty to act?
A duty may be discharged by a novation, i.e., a new contract substituting a new party for one of the parties to the original contract. Necessary elements are: (i) a previous valid contract; (ii) an agreement among all parties, including the new party; (iii) immediate extinguishment of contractual duties as between the original contracting parties; and (iv) a valid new contract.
How are advertisements viewed?
Statements of promise, undertaking, or commitment (i.e., offers) must be distinguished from statements of future intent or preliminary negotiations. Advertisements are generally construed to be mere invitations to make offers, although some advertisements may be construed as offers, especially if they are very definite as to terms.
What is required to form a contract?
Formation of a contract requires mutual agreement between the parties (offer and acceptance) and consideration.
What power is created in an oferee through an offer?
An offer gives the offeree the power to accept and create a contract until the offer is terminated. An offer can be terminated in a number of ways, including through a counteroffer from the offeree. A counteroffer serves as both a rejection terminating the original offer and a new offer from the original offeree, thus reversing the former roles of the parties and giving the original offeror the right to accept or reject the new offer.
What effect does a unilateral mistake have ona contract?
Whether it be of identity, subject matter, or computation, a mistake by one party is generally insufficient to make a contract voidable. However, if the nonmistaken party knew or should have known of the mistake, the contract is voidable by the mistaken party.