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60 Cards in this Set
- Front
- Back
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Is a signed, written promise not to revoke binding?
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Generally - NO - need consideration
Art. 2 - YES - firm offer (but cannot exceed 3 months) NY - YES (no consideration needed if signed and written) |
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Does beginning performance of a unilateral K prevent the offeror from revoking?
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MBE - YES (but not mere preparation)
NY - nope (offeror can still revoke) |
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Does an acceptance under CL need to be exactly the same as the offer?
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YES - mirror image rule
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Does an acceptance under Art. 2 need to be exactly the same as the offer?
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NO
But additional terms are only incorporated if (1) BOTH parties are merchants (2) not material and (3) offeror does not object within a reasonable time (2) |
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When is an acceptance effective?
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mailbox rule
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What if the offeree accepts, THEN rejects the offer?
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offer is rejected IF
(1) rejection arrives first AND (2) offeror relies on rejection |
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When the offeree rejects, THEN accepts the offer?
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whichever arrives first is effective
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When is the mailbox rule NOT applicable?
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Irrevocable offers
Revocation of offer |
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When is a revocation of an offer effective?
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upon RECEIPT - no mailbox rule
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What are the defenses against K formation?
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Lack of capacity of D (only for D)
Duress Misrepresentation or non-disclosure Ambiguity of terms Mistake of fact Lack of consideration Illegality Public Policy |
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Is past consideration enough?
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MBE - NO
NY - yes, IF expressly stated in a signed writing and can be proven |
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Do you need consideration for modification of a K?
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MBE - YES
Art. 2 - no, as long as good faith NY - no, IF it's signed in writing |
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Is partial payment in forgiveness of a debt sufficient?
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MBE - ONLY if the debt is in DISPUTE
NY - yes, IF i'ts signed in writing |
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When does NY allow a signed writing to stand for consideration?
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Revocability of an offer ~ option
Past consideration Modification of a K Partial payment for forgiveness of a debt Promise to pay an unenforceable debt Gratuitous assignment of rights |
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Do you need consideration for a written promise to pay debt that is unenforceable due to SOL?
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NO
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What's the standard for covenants not to compete?
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must be reasonable
Scope Need NY - services must be unique |
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Can you prohibit oral modification of a K in the K?
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MBE - NO - this is unenforceable
Art. 2 - YES, the parties can create their own SOF |
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When does SOF apply?
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(1) transfer of real estate interest
(2) service K that cannot be performed in 1 year (3) Art. 2 $500+ (4) Art. 2A $1000+ (5) suretyship (6) estate promise (7) promise in consderation of marriage (8) modifications, if would fit into above when modified (9) NY - assignment of insurance policy, etc. |
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Does SOF apply to broker's commissions in NY?
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YES
But NOT to attorneys auctioneers, or licensed REAL ESTATE AGENTS |
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Does SOF apply to lifetime K?
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MBE - no (hypothetical test)
NY - yes |
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What is required in a writing to satisfy SOF under Art. 2?
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(1) quantity term (unless requirements)
(2) signed by D |
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What is required in a writing to satisfy SOF under Art. 2A leases of goods?
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(1) state that it is a LEASE
(2) number of items leased (3) term (4) rental payments (5) signed by D |
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What is required in a writing to satisfy SOF generally?
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(1) all material terms
(2) signed by D |
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Is part performance enough to get around SOF in real estate K?
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sometimes - need 2/3
(a) some payment (b) permanent improvement (c) possession of property |
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Is part performance enough to get around SOF in service K?
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NO - need FULL performance
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When can you get around SOF in Art. 2 sales?
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(1) goods accepted or paid for (if paid upon delivery)
(2) custom made goods not suitable for sale to someone else |
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When does a confirmatory memo satisfy SOF?
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Art. 2 ONLY
(1) both parties are merchants (2) writing claims that there was a prior oral agreement (3) recipient doesn't object in writing within 10 days |
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If you guarantee a debt for someone else for your own benefit, does it have to be in writing?
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MBE - NO - exception to SOF
NY - YES (no exception) |
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What IS the parol evidence rule anyway?
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Evidence of a prior agreement that contradicts a LATER WRITING is inadmissible (to change the agreement)
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What are the exceptions to the parol evidence rule?
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(1) clerical error
(2) defense against formation (3) explain ambiguity (4) supplement a partially-integrated writing |
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What's a merger clause?
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"K is limited to terms herein" = evidence that writing is complete on its face
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How does the parol evidence rule apply to Art. 2 and Art. 2A?
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Basically, you NEED a merger clause to keep extrinsic evidence out (otherwise, you can get it in under supplementary evidence)
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What are the considerations that courts take into accoun to fill in gaps in a K?
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(1) course of performance
(2) course of dealing (3) usage of trade |
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What are the Art. 2 implied warranties?
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(1) merchantibility
(2) fitness - if for special purpose |
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How can you disclaim implied warranties under Art. 2?
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"all warranties are disclaimed"
"as is," "with all faults" a conspicuous disclaimer that specifically mentions warranties by name |
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Can a seller limit remedies for breach of warranty?
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Yes, for ANY warranty, as long as not unconscionable - e.g. limiting for personal injury
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Who bears risk of loss when a common carrier is NOT used?
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Seller is merchant - seller bears risk until buyer takes possession
Seller is NOT merchant - seller bears risk until goods are made available for possession |
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What is the standard for rejecting an installment sales K?
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Substantial impairment - for rejection of installment or entire K
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When may a buyer revoke acceptance of goods?
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(a) non-conformity substantially impairs value of the goods AND
(b) non-conformity was difficult to detect |
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What is a divisible K, and what's the standard for breach?
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payment is stipulated on a per unit basis (but NOT for partial completion)
breach is assessed on per unit basis then |
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What is an accord?
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agreement to accept stated performance in future satisfaction of an existing duty
does NOT extinguish the original K |
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When does the failure of an express condition does not excuse performance?
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When the party who is protected by the condition does not seek its enforcement
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When is a condition waived by a party?
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(a) the party protected by the condition voluntarily relinquishes it
(b) the other party relies on the waiver *CAN be retracted to the extent not relied upon |
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When is specific performance available under Art. 2?
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(1) goods are unique OR
(2) buyer cannot cover |
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When does a seller have the right to reclaim goods under Art. 2?
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(1) the buyer was insolvent when receiving the goods AND
(2) seller demands return within 10 days receipt of the goods OR at any point, if the buyer misrepresented its solvency to the buyer in the past 3 months |
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If an insolvent buyer sells goods to a BFP, can the seller get the goods back?
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NO
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If you entrust your property to a merchant that deals in the goods, can you get your property back if the jackass sells it to someone else?
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NO, if the purchaser was a BFP (for value without notice)
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If you can get liquidated damages, can you get actual damages?
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NO
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What is required for a valid liquidated damages clause?
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(1) damages are difficult to estimate AND
(2) provision is reaonable forecast of probable damages |
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When are consequential damages recoverable?
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(1) damages are special to the P AND
(2) reasonably foreseeable by D at the time of K |
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When does a 3rd party beneficiary's right in a K vest?
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(a) learns of the benefit AND
(b) relies on it except when the K specifies that the promisee can change beneficiaries |
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Can a 3rd party beneficiary sue the promisee (the person who does not owe the 3rd party beneficiary any performance?
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ONLY if the beneficiary is a creditor beneficiary
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Can a 3rd party beneficiary sue the promisor for breach (the party that owes performance)?
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YES, but the promisor can raise any defenses that she would have been able to raise against the promisee
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If someone delegates her obligations under a K, who can the obligee sue?
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The delegating party AND the delegate, unless there has been a novation (then only the delegate)
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If it says "assigns the K", is this obligations and rights?
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yes, both
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If a K says "rights not assignable" and a party assigns anyway, can the assignee collect?
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YES, but the other party can sue the assignor for breach
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If a K says "all assignments VOID" and a party assigns anyway, can the assignee collect?
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NO - the assignment was not valid
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If there are multiple assignments, some for value, and some gratuitous, which prevails?
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The FIRST for value
(or if none for value, the LAST gratuitious) |
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Is a gratuitous assignment revocable?
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MBE - YES
NY - not IF in writing signed by assignor |
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When can a later assignee for value prevail against an earlier assignee for value?
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(1) later assignee did not know of the prior assignment AND
(2) later assignee is te first to obtain payment or a court judgment from the obligor |
