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30 Cards in this Set
- Front
- Back
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Is the obligor obligated through K after they assign it away?
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Yes obligor remains obligated to the K
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What is Novation?
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one party is substituted for another party by agreement. The subject matter remains the same but there are new parties
Only way a party can be off the hook for a K |
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What is the doctrine of substantial performance?
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Under common law, there is no perfection. As long as substantial performance is completed, one must abide by K
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what can one sue under the UCC for non perfection in an agreement?
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One can sue if time/performance/quantity is not perfect. (measured by industry standard)
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What will courts decide if performance is measurable by a standard?
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Personal satisfaction is not valid
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Can someone reject something based on personsal satisfaction?
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No as long as it is good faith it cannot be rejected
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Under UCC & common law, what is the doctrine of anticipatory repudiation?
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someone tells you in advance that they are not going to perform
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How must one treat an anticipatory repudiation?
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Must be treated as a breach immediately. Must seek substitution, sue, etc.
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what can the breacher do if the party does not take immediate action against the breach?
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the breaching party can revive the K
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What is the doctrine of commercial impracticality?
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The promisor has the burden of the promise. BUT if the economic burden is increased by 5 to 10 times than originally contemplated, the party may be set free from the K
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How are actual/compensatory damages measured?
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damages are based on K price. the purpose it to put the non breaching party in same economic position as if there had been no breach.
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What two things must the innocent party do in a actual/compensatory damages case?
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innocent party must mitigate damages and must have reasonable damages
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Under actual/compensatory damages what are incidental damages?
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costs of acquiring substitute performance (storage,transportation, etc)
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Under actual/compensatory damages what are legal & nominal damages?
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if no damages are incurred one can sue for $1 under anger
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Under actual/compensatory damages what are consequential damages?
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based on breach (NOT K PRICE)
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what are the 3 steps in the test of consequential damages?
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forseeability
Wrong doer must be aware of further risk Must know that breach has its consequences |
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what are 3 things negotiated in a K?
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-consequential damages
-anti assignment clause -arbitration clause: whether or not arbitration will be used if breach occurs |
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when are punitive damages awarded?
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only in fraud. NOT recognized under K law
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what is the liquid damages clause?
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agreement of per day accumulation of money
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List the details of liquid damages?
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-there can be a set amount or fixed amount(cap)
-common with airlines w/ lost luggage |
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Can someone be foreced to follow a K?
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Generally one cannot be forced to follow a K whether it be a sale of goods or a service but can be sued
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When can someone be forced into following the K?
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when the item being sold is unique or NEARLY unique
REAL ESTATE IS ALWAYS UNIQUE |
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Can a buyer be forced into buying in a K?
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No because a seller can always find another buyer
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What is provenance?
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it is the history of an item. found usually when an item belongs to a celebrity - these are unique or nearly unique
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what is an injunction?
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Prohibits someone from working for someone else for a period of time. Only applies for celevrity like status and not ordinary people.
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What is reformation?
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equitable remedy when there is a gross clerical error
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Under common law, what is the election of remedies?
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under COMMON LAW some one has to pick 1 specific remedy
i.e. specific performance but no money |
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what is the election of remedies under the UCC?
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can have more than one remedy
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Describe difference b/w real and personal property
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Real property is land & everything permanently attached to it.
Personal property is everything that is not real property |
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List some tangible personal property
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can be touched or moved
(computers, cars, etc) |
