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127 Cards in this Set
- Front
- Back
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Common Law applies to (2)
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Real Estate and Services
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UCC applies to
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Goods
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Mixed Deal or "The All or Nothing Rule": Whichever is ________________ unless K __________ payment
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Predominant
Divides E.g. UCC would apply to parking lesson service because it is attached to sale of good (car) |
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Wherever K law produces an unfair result the court can still grant relief under ___________ contract because it is an ___________ remedy. We use this where P _________ on Ds payment and D is _________________ if P is not paid.
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Quasi
Equitable Relied Unjustly Enriched |
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K is an agreement that is _________________ i.e. Look for: Agreement and whether there is: _______, ____________, ____________ and then Is it Legally Enforceable?
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Legally Enforceable Agreement
Offer Acceptance Termination |
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Offer is manifestation by _________ or _________ of intent to contract; use reasonable person test
Manifestations of offers do NOT include words like: |
Words/ Conduct
Intend, believe, thought |
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Missing price in offer is OK for _________ but not OK for ______. For Real Estate you need __________ and ________
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Goods
Real Estate Price Description |
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Vague terms in either CL or UCC are not OK and do not equal an offer--e.g. _____________
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appropriate
fair reasonable so you don't need a price for a good, but if you write "fair" then it is an invalid offer |
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Advertisements are NOT ______ unless it is for ___________, it specifically states quantity and who can accept. Also ___________ are not offers unless in response to specific inquiry.
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Offers
Rewards Price Quotes |
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Output Contracts: "All, Only, Exclusively, Solely" they are ________ for goods and may be ________ if they are not unreasonably disproportionate to prior Ks
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Valid
Increased |
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Offer can not be accepted if it is ______________
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terminated
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Termination includes: DR. dIRT
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Death, Rejection, Irrevocable Offers, Revocation, Time Lapse
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Lapse occurs when a _______ is not stated. You must accept something in a __________ time. _____ days is probably too long.
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time period
reasonable time 30 |
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Death or Incapacity of either party _________ offer and ______ acceptance = termination of offer
Exceptions: Option K, Irrevocable, or Part Performance on Unilateral |
after
before |
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Revocation terminates an offer unless it is an offer that can not be revoked (FOUR). Revocation requires unambiguous: ________ or _________ that indicates unwillingness/inability to contract
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Direct Statement
Conduct/ Offeree must be aware of conduct |
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Irrevocable offers: FOUR
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ucc FIRM offer
OPTION start performance on UNILATERAL detrimental RELIANCE |
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Option is where offeror promised __________ or keep it open and ____________ was made
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to keep offer open
consideration |
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UCC Firm Offer: If ________ accepts your offer to buy/sell _________ and there is a ___________ to keep it open then the offer can't be revoked for __________
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Merchant
Goods Signed written promise Reasonable Period if no Time stated--i.e. no more than 3m even if it says 6m |
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Detrimental Reliance: offer can not be revoked where there is ___________ and it is _____________ and is _________
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reliance
reasonably foreseeable detrimental reliance big in construction questions bid = offer |
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Starting performance on Unilateral K: where _______ of offer is contingent on performance and performance begins you cannot revoke offer for ___________________. Note: The offeree may _______ @ any time. Also note: ________ ________ is not enough to "start"
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acceptance
withdraw mere preparation--but if this is the case argue detrimental reliance! |
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REJECTION (indirect) of can offer can be by word or conduct "CCA": __________, ________________, _________
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Counteroffer
Conditional Acceptance Additional Terms (Common Law Only; for Good this is usually OK) |
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A counteroffer ________ offer and becomes a ______ offer unless there was an _____________. There is no express K unless __________ is accepted & Offeree ______ accept the original offer once terminated & rejected.
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Terminates
New Option Counteroffer Can NOT |
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Counteroffer differs from mere ______________
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Bargaining
Look for whether there is a "?" @ end of sentence |
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Conditional Acceptance __________ offer. It can be recognized through words of condition: I accept _______, etc. Unless it is for _______ and the seller sends anyway.
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terminates
if and only if, so long as, etc. Goods |
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Additional Terms (NO Condition): If you only have 1 merchant in UCC Seasonal Acceptance & and offer is made and an acceptance includes additional terms: The acceptance is a mere _____________ and considered _________, which must be __________ to be a K
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Proposal
Separate Accepted |
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Additional Terms (No Condition): CL Mirror Image Rule is treated like a ____________
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Counteroffer
E.g. add clause but don't use "if and only if" = termination |
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Additional Terms (No Conditions): UCC Seasonable Expression of Acceptance: offer to __________ and response with __________ raises 2 questions: Is there a K (always yes) and Is the additional term part of K: what do you need?
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Buy sell goods
Additional Terms but can't use conditional language 2 Merchants, Can't change Material Terms, Offeror doesn't object--if he does the original terms apply |
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Offers are not ______, but _______ are
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Assignable
Options |
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Bilateral K: acceptance where you _________ and ___________ because it is an implied promise
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Accept
Start to perform |
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Unilateral K: acceptance where you __________ __________
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Complete Performance
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Mailbox Rule fro Acceptance is when __________
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Dispatched--so if you mail acceptance and then call to reject you will not be able to because acceptance upon dispatch
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Mailbox Rule for all other communications including rejection by offeree or revocation by the offeror is when it is ___________
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Received
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Mailbox Rule: Where offeree sends multiple communication the rule is_____________________
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whichever is received first--Mailbox won't apply
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You can not use Mailbox Rule to meet ________ deadline
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Option
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If you receive the wrong goods and the seller sends _________with an ____________ then there is a counter offer and NO breach; absent this you have an ____________ and _________________
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Accommodation
Explanation Acceptance & Breach |
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Is There A Reason Not to Enforce The Legal Agreement? "U MIND SPAM LLC2"
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Unconscionability, Mistake, Illegality, Non-disclosure, Duress, SOF, Public Policy, Ambiguity, Misrepresentation, Lack of Capacity, Lack of Consideration
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Lack of Consideration is a _____________ for legal detriment
Forms of Consideration (4)? |
"Bargained for" this means asked by the promisor in exchange for the promisor's promise
Performance, Forbearance, Promise to Perform, Promise to Forbear |
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Past Consideration does not equal ___________ unless promissor expressly ________ you to do something and knows that you expect __________
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Consideration
Asked Payment |
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Doing what you are obligated to do already can _________ equal new consideration for new promise to pay more
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Never
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Contract Modifications require ____________________ & ______________________
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New Consideration and New Action
Note: UCC does not require this, only requires the Good Faith Test |
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**Partial Payment for Consideration for Release where debt is _______ and ___________ is not consideration for release. However if the debt is not either of those things an early payment will be __________ even it it is less and debt will be
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Due
Undisputed Full Consideration Forgiven |
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Promise is legally enforceable even where it lacks consideration when one of the following consideration substitutes applies: _______________ to pay debt barred by Technical Defense or _________________
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Written Promise
Promissory Estoppel |
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Written Promise to satisfy an obligation is legally enforceable even where there is a ___________ ,such as Statute of Limitations, because even though it lacks consideration it is still a ______________ that is meant to be legally binding
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Legal defense
New Promise |
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**Lack of Capacity (3) Types of Persons:
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Infant
Intoxicated (unless the other party knows) Mental Incompetent |
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Consequences of Lack of Capacity?
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Party without Capacity can DISAFFIRM & AVOID the K
Party with Capacity can't back out, but can RATIFY the K when the party lacking capacity MATURES. Party Lacking is still obligated to pay for NECESSITY via QUASI K law (limited to value conferred) |
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Falls within the SOF when "MY LEGS": Promise in Consideration of ____________; Service Ks Not Capable of being performed within __________ of the K date; Transfers of Interest in __________; ____________promises to pay debt with his own funds; Sale of Goods for ________ or more and Lease of Goods for __________ or more; _____________ promise of guarantee to pay for the debts of another
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Marriage--i.e. to sell land before wedding
1 Year-- the date of the K is what matters; No Tasks, or Life Ks Real Estate/Land--does not apply toe leases under 1yr Executor 500--1K Surety (except where main purpose is for his benefit) |
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SOF does not apply to _______ or ___________
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Task or Life Ks
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When the SOF is "satisfied" the prior oral agreement becomes ______________ and the person asserting there is no agreement loses his ___________ defense. SOF may be satisfied in (2) ways. Name them.
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Enforceable
SOF Writing Performance |
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Writing Prong under SOF is satisfied for CL where material terms __________ and _________ are identified & the writing is signed by the party __________ **watch out for this if the person asserting the __________ did not sign then they have a valid ________ defense**
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WHO & WHAT
"to be charged" defense SOF |
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Writing is satisfied for UCC under SOF when ___________ is identified and signed by the person_________. But Note: if both parties are merchants then SOF is satisfied when the party __________ receives a writing & quantity term & fails to respond within_____ days of receipt
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quantity
"to be charged" claiming there is no agreement quantity 10 days |
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For Performance of a Service K to satisfy the SOF there must be ___________ performance
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Full
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For Performance of a Real Estate Transfer under the SOF you need 2 of the 3 PPI. What are these?
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Payment, possession, improvements
Note: that full cash payment will NOT suffice |
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For Performance of ORDINARY Goods under the SOF ______ performance where ________ has been made will suffice.
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Part
Delivery |
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For Performance of CUSTOM MADE GOODS under the SOF there must be a _______________ to suffice
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"Substantial Beginning"
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Judicial Admission for the Sale of Good ONLY under the SOF is satisfied where the party claiming there is no agreement admitted previously that there _________________ in a _______, _________, or ____________
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Was an Agreement
Pleading, Testimony or Discovery |
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If SOF is NOT satisfied then the D has an ___________ and the "agreement" is _____________
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SOF defense
NOT enforceable |
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If Modification of a NEW DEAL falls within SOF then _____________ must satisfy SOF to be enforceable
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Whole Deal
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Modifications Clauses in Ks requiring that all modifications be in writing are ________ in the CL and effective unless _______ in the UCC. This is due to a _____________ not necessarily because the original agreement fell within the SOF
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Ignored
Waived Matter of Law |
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Under the _____________ Doctrine a person must have _________________to execute a K for someone else if the K is to be signed originally fell within the SOF
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Equal Dignity
Written Authorization |
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Misrepresentation involves a ______ assertion of fact or ______ by the parties/agents before the K that induces the K. __________ is not required, but the effect regardless is ________ or __________ the K
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False-Concealment
Wrongdoing Rescind-Cancel |
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Parol Evidence is ______ of parties before _______ which is a written and final agreement
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words
integration |
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PE is triggered when written K is found by court to be _________ and ___________ made at time of signing K or earlier written/oral statement by parties
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final agreement
oral statement |
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Issue for PE is whether _______ K evidence is admissible because the purpose is often _________
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Pre
Determinable |
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PE is NOT allowed for (2)
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Contradiction written deal
Adding to written deal unless separate/partial integration |
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PE is allowed for (3)
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Mistake
Defense for Recission: Misrep, Fraud, Duress Ambiguity |
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Explaining gaps in Ks: court looks at ______________ where parties are same and k is the same; it looks at _____________ where parties are the same but k is different; it looks at _______________ where parties are different and ks are different
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Course of Performance
Course of Dealing Custom/Usage |
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Risk of Loss: ______ K is formed but ______ buyer receives the goods are _______ or _________ and ___________ is to blame
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After
Before Damaged Destroyed Neither |
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Risk of Loss if seller is merchant risk of loss shifts to buyer when he __________ the goods
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Receives
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Perfect Tender for UCC: Seller is obligated to _______________; less than this gives buyer the right to ____________
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Perfectly deliver good
Reject |
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Risk of Loss: ______ K is formed but ______ buyer receives the goods are _______ or _________ and ___________ is to blame
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After
Before Damaged Destroyed Neither |
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Risk of Loss if seller is merchant risk of loss shifts to buyer when he __________ the goods
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receives
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Risk of Loss if seller is not merchant risk of loss shifts to buyer upon ___________
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tender or shipment
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Perfect Tender for UCC: Seller is obligated to _______________; less than this gives buyer the right to ____________
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perfectly deliver good
reject |
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Distinguish Rejection & Revocation
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Rejection is before acceptance under the Perfect Tender Rule while Revocation is after acceptance under the Substantial Impairment Theory
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Seller of perfect tender rule can cure before _____________; if expired must be reasonable grounds for believing cure will be allowed--i.e __________
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time expired
past deals |
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If you accept goods and keep them for ________ you can't reject.
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1m
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You can REVOKE acceptance if _____________ impairs value of goods, reliance on seller's ______________, within a ______________ period of time
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nonconformity
assurances reasonable sleeping bag for camping trip |
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Non-Monetary Remedies (2)
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Specific Performance (unclean hands)
Injunction (K services no SP) Reclamation |
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Reclamation: seller can get good back if buyer was ____________ at time goods RECEIVED and seller demands within ________ days of receipt and buyer still has ________ of goods
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insolvent
10days possession |
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Money Damages Purpose is to:
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Compensate P not punish D
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Measure of Damages: Value of ___________ without breach and Value of ______________ with breach then compare the two
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Performance
Performance |
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If Seller breaches and buyer has goods
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FMV
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If Seller breaches and seller has the goods
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MP at time discovery of breaach or Replacement price
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Buyer breaches and buyer keeps the good
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K price
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Buyer breaches and seller has goods
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K price - Resale (Lost profit)
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Valid Excuses for Non-Performance: LIMPAL
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Later K, Insecurity, Material Breach, Performance Condition, Anticipatory Repudiation, Later Unforeseen event
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Material breach: CL if one party breaches other is _________ unless ________ look for lump sum/performance based; UCC if perfect tender buyer can ______ unless ___________
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excused
divisible k (then do unit by unit) reject installment k |
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Performance Condition: strict compliance with _______ condition. This can be eliminated by ______
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express
waiver |
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Anticipatory Repudiation: Unambiguous statement that party ________ perform made __________ to when performance is due. Other party has immediate claim for _______ if the performance is not yet finished; if it is he has to wait to sue until the performance date
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will NOT
prior breach |
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Later Contract/Recission is valid if __________ has not yet been completed by one party
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Performance
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Later Contract/Accord or Satisfaction: the agreement by parties to accept different _________ in satisfaction
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Performance
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Later Unforeseen Event: After K but before performance some even makes it: _________, __________, or ____________
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Impossible
Impracticable--extreme unreasonable expense Frustrates purpose |
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Examples of Unforeseen Events (4)
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Damage/Destruction
UCC Goods--do risk of loss Death, doesn't make K oblig disappear unless special person Subsequent Law |
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3rd party:
Promisor Promisee Creditor |
or: mades promise that benefits 3rd
ee: obtains promise Creditor: intended beneficiary |
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If 3rd party knows/relies on rights the K cannot be _________ without their consent
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cancelled/modified
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Beneficiarys can recover from __________ but NOT ________ unless the beneficiary is a __________
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Promisor
Promisee Creditor |
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Promisee can recover from _____________
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Promissor
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Assignment is betwen ONLY ____ parties and 1 party ________rights to 3rd party
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TWO
TRANSFERS this is asignor, assigner, obligor |
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There may be language in K that prohibits _________. Assignor is liable for breach, but Obligor can still enforce k and collect from assignee he he doesn't know; assignee can sue assignor
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Prohibits
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Delegate __________ and assign __________
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duties
rights |
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What is the measure of recovery under a Quasi K?
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Value of the benefit conferred
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Offeree is silent as to how the offer can be Accepted. Generally, _________ is not an acceptance unless the Offeree by ________________ agrees
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Silence
Words or Conduct e.g. If you don't hear from me, I accept. |
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One person's promise may be consideration for another's promise, but where one party has no detriment, it's ____________
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Illusory. Don't choose this it's too easy--i.e. unless A changes his mind, but not unless A notifies B otherwise
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Adequacy of ____________ is not relevant in K law, but it is in ____________
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Consideration
Equity |
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Preexisting Duties require Consideration for Modification, but in some instances that Consideration is excused: ________________ ( like inoperative sound machine) or where _______ promises to pay
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Unforeseen Difficulty
3P |
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Under Consideration Substitutes ________________ arises when there is a promise, a reasonable reliance that is foreseeable, and serves to avoid injustice
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Promissory Estoppel
Don't choose this if parties ask each other to do something; this is act of reliance |
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Illegality involves either illegal _________ in which case the agreement is void or _______ in which case the agreement is enforceably only by the person _________ of the illegality
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Subject Matter
Purpose Unaware |
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Generally there is ________ to disclose unless there is a ______________ or _________ and there is a ___________ requirement unlike Misrepresentation
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NO duty
Fiduciary Relationship Concealment Wrongdoing |
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Public Policy will invalidate agreements where they are offensive--e.g. ___________ that exempt intentional/reckless conduct from liability or an _________ covenant not to compete
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Exculpatory
Unreasonable--No time or Place Identified |
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Duress involves _________ __________ to breach the K unless a new deal is made; the P has ____________ source of supply
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Improper Threat
No Alternative |
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Unconscionability involves either procedural __________ or substantive ________ at the time the agreement is made. The ___________ will determine whether this existed
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Unfair Surprise
Oppressive Terms Jury |
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Ambiguity involves a Material term that has _____________________ and each party attaches different meaning. Parties may ________ where they were both unaware; if one does know the party who was unaware will control the meaning
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@ least two reasonable alternative meaning
Rescind |
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Mistake of Fact can involve a _____________ of Fact in which case there is _________ or it can involve a _______ and unless __________ the party can NOT avoid the K
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Mutual- NO K
Unilateral- Palpable |
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Delivery Options: When NO K shipment will be to _______________________
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Seller's Place of Business
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Shipment K: Seller's obligation is complete when he gives it to the ____________
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Common Carrier
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FOB: Seller's Location is:
FOB: Buyer's Location is |
Shipment K
Destination K |
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Destination K: Seller's obligation is complete when ____________________
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When goods arrive @ Buyer's Location
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In a __________K the seller needs to notify the buyer of delivery
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Shipment
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In Risk of Loss the ________ party has the risk
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Breaching
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Delivery by Common Carrier other than the Seller: Risk of Loss shifts once _________ obligations have been fulfilled
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Delivery
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NO agreement, NO breach, NO delivery by Common Carrier: If Merchant the risk won't shift until _____________ and if NON-Merchant the risk won't shift until the seller _________ and makes available
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the buyer receives the goods
tenders |
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If Risk of Loss is on Buyer he must pay ________; If it is on the Seller possible obligation of non-delivery
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Full K price
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Express Warranties include _________ or ______ and includes samples. _____ is not permitted
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Promise
Facts Puffing |
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Implied Warranty of Merch: Where merchant deals with ____________ for ________ purpose
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Good of that Kind
Ordinary |
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Implied Warranty of Fitness by contrast deals with a _______ purpose and the buyer must rely and seller know the buyer is relying. Warrants that good will fit the particular purpose
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Particular
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Disclaimers may eliminate _________ warranties, but not __________. Disclaimer Language = ____________
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Implied
Express "As Is" |
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Limitations on Warranties by contrast can be applied to ______________ Warranties. The test is unconscionability at the time of ____ and limitation is prima facie if breach results in _______
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Express
K Personal Injury |
