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160 Cards in this Set

  • Front
  • Back

Which witnesses may the judge not exclude from the courtroom

1. A party, 2. an officer or employee of a non-person party who is designated to represent it, 3. a person whose presence is essential to the presentation of a party's case (ie an expert), 4. a person authorized to be there by statute.

All other witnesses can be excluded to prevent them hearing testimony at request of either party or the judge's discretion

Impeaching a witness' character for truthfulness:

Allowed: testimony giving an opinion of the character for truthfulness, specific questions regarding witness' prior acts

Prohibited: extrinsic evidence of witness' prior acts

Impeaching for Bias or Prejudice

Allowed: all evidence is allowed to show that a witness is biased or prejudiced to a party

Impeaching Sensory Perception

Allowed: all evidence is allowed to show that a witness' sensory perception may be flawed

Impeachment by Contradiction

Allowed: evidence of prior statements that contradict trial testimony, extrinsic evidence that contradicts witness on significant issues

Prohibited: extrinsic evidence of collateral issues

Impeachment by criminal record

Allowed: Evidence of witness' Past crime within the last 10 years if the crime involves deceit or has probative value

Criminal defendant? the probative value must substantial outweigh the risk of prejudice

Where a prior inconsistent statement is introduced to impeach a witness, what must be done?

A witness must have the opportunity to explain or deny the statement

When can a prior inconsistent statement be offered as substantive evidence?

Only if it were made under oath in a proceeding or a deposition.

Standard for relevancy

evidence is relevant if it has any tendency to make more or less likely the existence of any fact of consequence to the determination of the action

Subsequent remedial measures

Inadmissible to show negligence or product defects.

Admissible to show ownership or control, or impeachment

When may a party introduce evidence of statements made during a settlement negotiation

Generally may not, even for impeachment, unless: 1. to show bias or prejudice of the witness 2. rebut argument of undue delay, 3. to prove obstruction of a criminal investigation.

In order for this to apply there MUST be a dispute, otherwise statements by parties are admissions

Offers to pay medical expenses?

Generally not admissible, only to prove something other than liability for the injury.

What evidence of guilty pleas are admissible

All plea discussions, withdrawn pleas, pleas of nolo contendere, and statements made in discussions that don't result in a guilty plea or are later withdrawn are inadmissible.

exception: statements are subject to perjury proceeding or other statements from plea discussion have been admitted (fairness to admit more)

Authentication of a document based on handwriting?

1. a witness familiar with the handwriting

2. handwriting expert

3. jury comparison to a handwriting sample

Authentication of a photograph?

Aiding witness testimony: W testifies is a fair and accurate representation of what witness is testifying about at the relevant time

Silent witness: Foundation Testimony : 1. camera was properly working 2. film properly removed and developed 3. film has not been tampered with

What is a solicited reply?

a document received in response to a communication, and references the communication, is authentic as coming from the alleged recipient of the initial communication.

Self authenticating documents

1. official publications

2. certified copies of public documents

3. newspapers or periodicals

4. trade inscription or labels

5. notarized documents

6. ancient documents

When is character evidence permissible

when character is in issue:

1. negligent hiring/entrustment - the person hired is not responsible so their character can be proved with any evidence

2. defamation cases - all evidence admissible re: D's character

3. Impeachment - character for truthfulness

When can the prosecutor introduce evidence of the victim's character without the D first having done so?

in a homicide case, the P can give evidence of the Victim's character for peacefulness to rebut evidence that the victim was the initial aggressor

What about the Defendant's character in a sexual assault case?

P can introduce evidence of D's convictions for sexual crimes in order to prove propensity to have committed the current sex crime (only criminal, and only situation in which character evidence is allowed to prove a person acted in conformity with that character)

When can the Defendant in a criminal sexual assault/rape case offer evidence of the victim's prior sexual conduct?

1. that another person is the source of physical evidence

2. to prove consent

Sexual assault victims prior sexual ACTS?

only if its probative value substantially outweighs the danger of harm to the victim and danger of prejudice to a party.

D MUST file a motion 14 days before trial describing such evidence

When are prior acts admissible?

MIMIC - motive, intent, absence of mistake, identity (modus operandi), common plan or scheme

Expert Witness Requirements

1. combination of education or experience

2. Testimony about a subject where technical, scientific, or specialized knowledge would be helpful

3. proper basis - expert experience, evidence already in the record, facts in record type typically relied on by experts in the field

4. reliable

Daubert standard?

To determine Expert reliability (flexible standard)

1. methodology has been tested?

2. known rates of error?

3. is methodology subject to peer review?

4. has the methodology been generally accepted?

What is the limit on expert testimony?

Experts may NOT testify that a criminal defendant did or did not have the required mental state to be guilty of the crime - may give opinions to all other issues in dispute

Spousal immunity?

Under the Federal Rules of Evidence, in a criminal case the prosecution cannot compel the defendant's spouse to testify against him. This privilege only applies if the defendant and the spouse witness are currently married at the time of the prosecution. Additionally, this privilege may be waived by the witness spouse if he or she would like to testify. Only for duration of marriage.

Spousal Privilege

Communications privilege: in both criminal and civil cases, communications between spouses during the marriage are privileged. This applies to both words and acts intended to be a private communication. The burden is on the opposing party to prove otherwise.

Confidential communications made during the marriage survive the marriage.

The marital privilege no longer exists when the spouses are the parties in an action against each other, such as in a divorce proceeding.

When is there no attorney client privilege?

1. future crime or fraud

2. client puts legal advice in issue

3. Attorney client dispute (ie fees)

Federal Privileges?

1. Spousal Privilege/Immunity

2. Attorney Client

3. Psychotherapist/patient

4. Clergy/parishioner

5. 5th amendment against self-incrimination

When is a party excused from providing an original document that they are seeking to prove the contents of?

If it is unavailable: 1. lost or destroyed through no fault of proffering party 2. outside the j/d of the court and no means to obtain it 3. in the possession of an adversary who will not produce it.


out of court statement offered to prove the truth of the matter asserted


Statement by a party that are offered against that party are not hearsay.

Admissions by co-conspirator?

admissible non-hearsay if statement made during the course of the conspiracy and in furtherance of the conspiracy.

5 Classes of Party Admissions

1. statements made by the party

2. statements the party has manifested an adoption or belief of their truth

3. statements by a person authorized by the party to make statements concerning the subject

4. employee/agent statements concerning a matter within the scope of employment/agency made during the employment/agency relationship

5. statements made by a co-conspirator in during the course of and in furtherance of the conspiracy

When are witness' prior out of court statements not hearsay?

where the witness both testifies at trial and is subject to cross examination:

1. Inconsistent statements: given under oath at deposition or hearing

2. consistent statements: offered to rebut an express or implied assertion that the testimony is fabricated or of improper influence or motive (must be made BEFORE the improper influence or motive appeared

3. prior statements of identification: of a person, having been made after perceiving that person.

Besides the truth of the matter asserted, what may out of court statements be offered to show?

1. effect of statement on listener

2. establish notice or knowledge

3. demonstrate the state of mind of the speaker


1. admissions of party/opponent (agents too)

2. prior statements of a witness: prior consistent to rebut assertions of fake testimony or prior inconsistent made under oath (or solely for impeachment, statements of identification

3. Statements not offered for their truth: to prove notice, knowledge, state of mind, and legally operative statement

Present sense impression

Hearsay Exception: 1. must concern an event and 2. be made while the event is occurring or immediately after

Excited Utterance

Hearsay Exception: 1. must concern a startling event and 2. is made while still under the exciting influence of the event.

Statement of then existing mental, emotional, physical condition

Hearsay Exception: must be a contemporaneous statement concerning the declarant's then existing physical condition or state of mind

Statements for the purpose of medical treatment or diagnosis

hearsay exception: 1. made to a medical professional 2. concerning present symptoms, past symptoms or the general cause of a condition 3. for the purposes of treatment and diagnosis

Statements concerning fault or wrongdoing do not qualify

Past Recollection Recorded

Hearsay Exception:1. witness once had personal knowledge 2. witness forgets and the writing does not refresh the witness' memory while testifying 3. writing made or adopted by witness 4. was made when event was fresh in memory 5. writing is accurate.

Party offering may only read it into evidence, not offer as an exhibit, opposing party has option to enter it into evidence if they so choose.

Business Records Exception

Hearsay Exception: business record is customarily made in the course of ordinary business, business regularly keeps the records, made at the same time as the event recorded, and by someone with personal knowledge of event recorded - absence of the record can also be shown that a normally recorded record does not exist and thus the event did not occur

Are police reports business records?

No. a police report is never admissible in a criminal prosecution as a business record.

Learned Treatise

When an expert establishes a treatise as an authoritative work, the treatise may be used for cross-examination and portions may be read into the record as substantive evidence

Ancient Documents

Hearsay Exception

1. Documents at least 20 years old and is properly authenticated, can be admitted as substantive evidence if this is the case.

Miscellaneous Hearsay Exceptions

1. Records of Vital Statistics

2. Judgments - copies of felony convictions are admissible to prove any fact essential to conviction

3. Documents affecting property interests: grants, deeds, wills transferring property

4. Family records - bibles, tombstones, engravings - can prove events related to a family

Declarant UNAVAILABLE Exceptions to Hearsay

1. Homicide Case: dying declaration - must be dead

2. Prior Testimony under oath

3. Statements against interest

Definition of unavailable?

1. dead/ill

2. beyond j/d of court

3. privilege

4. lack of memory to testify

5. stubbornly refused to testify

Former Testimony Exception


2. Prior testimony made under oath at a prior proceeding or hearing or deposition

3. adverse party had time to cross examine at the time

Statements against interest?


2. statement made when declarant had reason to know it was against their pecuniary/penal interests (confessions/admitting a debt)

Offered in a crim case to exculpate the D, must have corroborating evidence.

Dying Declaration


2. Statement made under a sense of certain impending death

3. Concerning the cause of the impending death

only allowed in homicide cases, crim or civil

Forfeiture by wrongdoing exception

Where a party intentionally and wrongfully procures the declarant's unavailability, all of the declarant's statements are admissible. Must have found to have caused the unavailability or put it in motion by A PREPONDERANCE OF THE EVIDENCE

Limits on Hearsay in Criminal Cases?

The confrontation clause of the 6th prohibits the introduction of any testimonial statements where the defendant does not have an opportunity to cross examine the declarant. Testimonial = said in response to questioning from police/govt - 911 calls? not testimony. Affidavit from crime scene lab techs? testimonial. Forfeiture by wrongdoing is not an exception unless the wrongdoing was commissioned to prevent testimony - 6th amendment

When is there a duty to act with regard to criminal liability?

1. contract - doctors

2. relationship - parent/child

3. statute - file taxes

4. assumption of care: must continue care once you begin care.

5. your conduct creates peril

Specific Intent

intent to not only commit the act, but to do it with a specific purpose and objective

General intent

awareness of all factors constituting the crime, established by proof the D engaged in the criminal act, not a separate element.

Specific Intent Crimes

1. Inchoate Crimes

2. 1st Degree Murder

3. Assault

4. Burglary

5. Property Crimes: larceny, robbery, forgery, false pretenses, embezzlement.


Reckless disregard of an obvious or high risk that harm will occur - common law murder and arson

Transferred intent

from one victim to another. applies to homicide battery and arson, but not attempts of these

Defense: Mistake of Fact

1. Specific intent crimes - any mistake that negates specific intent may be a defense

2. Malice and General Intent - any REASONABLE mistake MAY negate mens rea

3. Strict liability = NO.

What defenses must a P disprove and a D prove and by what standard?

P: 1. Infancy, 2. Self-defense - beyond a reasonable doubt - and every element of crime charged!

D: Affirmative defenses: 1. insanity, 2. intoxication, 3. duress, 4. mistake, 5. consent, 6. entrapment. -preponderance of the evidence - less than prosecution

M'Naghten Rule

Insanity defense - unable to understand the wrongfulness of the act OR to understand the nature and quality of the actions

Irresistible impulse test

lacks capacity for self control AND free choice

Durham Test

Crime is the Product of a MENTAL ILLNESS

MPC Test

mass follows: no capacity to either appreciate the criminality of the conduct OR to conform the conduct to the law. (m'naghten + impulse)

Self Defense

Non-Deadly: as much as reasonably appears necessary to protect oneself from the imminent use of unlawful force

Deadly: Without fault, attacker using unlawful force, only where it is reasonable belief that imminent serious bodily injury or death is occurring. - initial aggressor can only use if they withdraw and communicate the withdrawal

Malice Aforethought

1. Intent to Kill

2. Reckless indifference to an unjustifiably risk to human life

3. Intent to commit a felony (felony murder)

Voluntary Manslaughter

unlawful killing of a human with adequate provocation. 1. ordinary person would have been provoked 2. ordinary person would not have time to cool off 3. D was provoked 4. D did not actually cool off

Involuntary Manslaughter

1. a killing 2. committed with either criminal negligence or during a non-felony murder crime

Felony Murder Triggered where

1. Burglary Arson Rape Kidnapping (dangerous felonies)

2. Death is foreseeable and must occur either during the felony or on the flight therefrom. After safety is reached no longer in flight.

Co-felon killed by cops -not felony murder, must be distinct killing from underlying felony as well

Larceny by Trick

trespassory taking with intent to deprive permanently of the property of another + consent to the item's possession is obtained by misrepresentation. possession not title.

Common Law Embezzlement

Crime: Fraudulent, conversion, of another's personal property, by one in lawful possession

Defenses: 1. intent to restore - must be exact property taken. 2. Claim of Right - good faith belief that what you took is yours

False Pretenses

1. Obtain title, 2. property of another, 3. by intentional false statement of past or existing fact, 4. Intent to defraud


Making or altering a writing with apparent legal significance, so that it is false with the intent to defraud

Uttering: offering as genuine a false instrument with intent to defraud

What do all property crimes have in common?

specific intent crimes


larceny +battery

Common law kidnapping

unlawful confinement of a person without consent, some movement of the victim, concealment in a secret place

In what two situations does an inchoate crime not merge with the completed crime?

1. Conspiracy: never merges, mere agreement is its own crime

2. Attempt - where the result is on a victim different from the intended one

what is legal impossibility a defense to?

ONLY to attempt. if the underlying attempted act is LEGAL, THEN THERE CAN BE NO ATTEMPT, no matter what the intent of the actor


1. must aid encourage or command principal to commit act

2. have the intent to aid or encourage the crime

Failure to prosecute the principal?

Common law rule provides that failure to prosecute and convict the principal exculpates the accomplice.

Armadillos From Texas Play Rap Eat Tacos

1. Applicable Law

2. Formation of a K

3. Terms of K

4. Performance

5. Remedies for unexcused nonperformance

6. Excuse of nonperformance

7. Third Party problems

Irrevocable Offers

1. Options (can accept original even if you counter) 2. UCC Firm Offer: merchant/offer to sell or buy/in writing/promise to leave open - max 3 months if silent to duration 3. Reliance - reasonably foreseeable and detrimental 4. Unilateral K - start of performance, mere prep not performance, most k's NOT unilateral

Indirect Rejections

1. Counteroffer Kills

2. Option Exception

3. Conditional Acceptance = reject + new offer

Mirror Image and Last Shot Rule

Common Law

Acceptance must mirror terms of offer or the offer is dead, but if conduct of the parties makes a contract, then apply the last shot rule, ie, the last piece of paper discussing terms exchanged between the parties controls.

UCC 2-207 - Battle of the Forms :(

Is there an Acceptance = 1. with differing terms (as long as not explicit rejection or acceptance explicitly limited to offers terms) or 2. Conduct of parties (see next slide!)

If 1. is YES, then determine if there are two merchants or if one party is not a merchant.

a. One not a merchant = additional terms are proposals, and not binding, different terms are incorporated into K.

B. Both merchants: additional terms become part of K, UNLESS offer expressly limits acceptance to offer terms, OR new terms materially alter K, OR notification of objection to new terms is given in reasonable time.

Knockout Rule/Battle of Forms continued!

Writings exchanged insufficient to form a K, but the parties perform anyway, apply UCC 2-207 (3)- the “Knockout Rule “to different or additional terms: these terms are “knocked out” of the contract and replaced by UCC gap-filling provisions.

Significance of a valid acceptance to the parties rights

bilateral K (most k's) - start of performance is an acceptance, and can't stop performing once started.

unilateral K - acceptance = completion of performance, and can walk away any time before completion. lol, seems fair.

Seller sends WRONG goods?

Generally = acceptance + breach

EXCEPTION: Nonconforming goods + notice of accomodation is a counteroffer not a breach

Illusory Promises

Not consideration. "reserves right to terminate at will" style language. Contrast with notice of termination which is consideration.

Pre-existing duty rule!

Common Law: modification of a K requires consideration. Doing what you are legally required to do already is not consideration.

Exceptions: addition/change in consideration (ie time, $) is ok, unforeseen difficulty so serious as to excuse performance, or 3rd party promises to pay.

Modifications of UCC K

No consideration required, merely good faith.

Statute of Frauds

To satisfy: 1. performance OR 2. a writing signed by party to be charged

K's within statute of frauds fun time

1. Surety - but if main purpose of promise is to benefit guarantor then not SofF 2. Service K > Year 3. Real estate, but not leases

MYLEGS generally etc.

Satisfy statute of frauds without a writing?

1. Performance of K

2. Real estate- MBE need 2/3: IPP - Improvement, Payment, Possession (MA need all 3)

3. Service K = full performance of either party

4. Part Performance - UCC - satisfies SofF ONLY to the extent of performance, ie delivered goods.

5. Substantial beginning on custom/special/unusual order

UCC and Statute of Frauds

Need only the Q term and signature of party to be charged. EXCEPTION FROM THE 1950s, thank you UCC: responding delay exception: objective proof of a K is failing to respond, obviously if you receive a letter in the 50s and you don't respond/object you meant to make a K. :/

Statute of Frauds and LEASE OF GOODS


1. Total lease is >$1000

2. Writing with Q terms signed by D

3. Expressly states is a lease.

Statute of frauds by ESTOPPEL

Omg I totally promise to write this down later. Never do. D promise to put in writing is estopped from SofF

Equal Dignity Rule

does law require written authorization of authority to enter K's - Agency - WRITING REQ ONLY if the K is the type that reqs a writing. Land..goods >500 etc....

Does the modification of this K require a writing?

Compare old deal and new deal. if the new deal would be in the statute of frauds, then yes there is a writing requirement.

What if a clause in the Original K requires all modifications to be in writing?

Common Law: not effective, ignore, oral modifications with consideration are fine.

K provisions req a writing for modifications are effective unless waived


1. False

2. Statement

3. By a party

4. Induces K (intent for wrongdoing not required)

Parol Evidence Rule

Think like evidence. What purpose/can it be considered

Purpose it is offered = determinative if parol evidence can be used.

Oral or written words of parties prior to integration.

PERule - changing/contradicting terms?

evidence of earlier agreements is NOT considered for purpose of changing or contradicting the terms of the written K.

PE Rule - Mistake in Integration

Wow you have a terrible admin, she messed up the K, so we must consider Parol Evidence for limited purpose of determining mistake

Parol Evidence admissible to Establish a Defense?

yes admissible for this purpose, typically defense is misrepresentation

What about those ambiguous terms, can we use P.E?

Yasss. for purpose of explaining the written deal PE can be considered

Can we add to this deal with some parol evidence? Not changing the terms we have...just adding?

Only where it is a partial integration or additional terms would normally be in a separate agreement. fully integrated? nope.

So where do we get the "terms of the K" anyway

1. Written K. derp.

2. Conduct of the parties

What is conduct that gives us terms of the K and what is preference courts give to types of conduct?

1. course of performance = same people, same K

2. course of dealing=same people, different but similar K

3. Custom and Usage - different but similar people, different but similar K.

Delivery terms and the UCC

1. FOB (seller city) = shipment K

2. FOB (anywhere but seller city) = Destination K

UCC and the K calls for a Common Carrier, when are seller obligations COMPLETE

Shipment K: Seller delivery obligation is satisfied and risk shifts to buyer upon delivery of goods to common carrier, reasonable arrangements, and notification to buyer the carrier has the goods

Destination K: seller does not complete delivery obligation, thus retaining risk, until goods reach their destination.

Risk of Loss!

1. Agreement b/t parties as to risk controls

2. Breach = breaching party liable for uninsured loss

3. Common Carrier - when seller completes obligation risk shifts (Shipment v. Destination)

4. Catch-All: situation not covered by 1-3

Risk of loss and it isn't an agreement/breach/commoncarrier thing!

1. is the seller a merchant?

a. Yes = risk of loss shift to buyer upon receipt of goods.

b. No= risk shifts when goods are tendered!

Risk for leased goods?

If no fault, no risk for lessee, UNLESS it is a finance lease, in which case banks always win, keep paying.


1. express - including samples/models

2. merchantability - implied every sale goods are suitable for ordinary use

3. fitness particular purpose - buyer has a purpose, buyer relies on seller to select good, seller knows he is relying, reliance.

Warranty Defenses!!!

1. Stat. of Limitations = 4 years

2. Privity - MA no privity will not bar recovery

3. BUYER examined goods: no implied warranties for obvious defects inspection would reveal

4. Disclaimers: express - can't, implied - conspicuous language/ "as is"

MA: really cares about you, consumer, can't effectively disclaim implied warranties

Can you limit some of these warranties?

Yes. can't eliminate them, but you can limit them, ie only providing replacement parts rather than entire new item. general test is unconscionability, is unconscionable if a breach of warranty on a consumer good and it causes personal injury.

Perfect Tender Rule - UCC

tendered goods completely conform to K. if not, buyer can reject.

Distinguish rejection of offer/goods.

Rejection - buyer options UCC

1. can keep goods and sue for damages, or

2. reject "all or any" commercial unit and sue for damages

Buyer must take reasonable care of goods and stop using the rejected ones.

Cure of nonconforming goods

1. Seller reasonable grounds to believe nonconforming goods would be acceptable (prior dealings in facts)

2. Time for performance has not expired

Installment K's and nonconforming goods

1. Buyer has right to reject an installment only where there is substantial impairment that cannot be cured in that installment.

Acceptance of nonconforming goods by buyer

1. If buyer accepts, can't later reject

2. Payment and acceptance: payment without opportunity for inspection is NOT acceptance

3. Failing to reject: rejection must be timely, failure to be timely is acceptance

4. Implied acceptance : keep all the goods

Revoking acceptance?

1. Nonconformity substantially impairs value

2. Excusable ignorance of grounds for revocation/reasonable reliance on sellers assurances for satisfaction

3. Revocation within reasonable time after acceptance.

Sellers right to reclaim goods from insolvent Buyer.

1. Buyer insolvent @ time he received goods

2. Seller DEMANDS return w/in 10 days of receipt

(or reasonable time if lying buyer expressly said she was solvent)

3. Buyer still has goods at time of demand

General vibe for how damages are calculated in K's

we want to compensate the P not punish the D. make everyone whole.

Types of Damages

1. Expectation - get what you expected without breach = expected profit + supplies expended

2. Consequential = foreseeable - SPECIAL to P, arise from P's special circumstances that D had reason to know of at time of K. D must have known

3. Avoidable: duty to mitigate, otherwise no

4. Reliance: out of pocket, for when your expectations are too uncertain, ie new business or thing

5. Liquidated: provision in K - can't be a penalty, 1. damages were difficult to forecast, 2. reasonable formula/range, not a fixed mean number

UCC Damages

1. Who Breached

2. Who has the goods

3. Was there a replacement deal?

UCC Damages - Seller Breach

1. Seller Breach, Buyer has goods:

FMV if perfect-FMV of delivery, OR cost of repair

2. Seller Breach, Seller has goods: Greater of

a. Market price @ time discovered breach - K price OR

b. Reasonable replacement price - k price

UCC Damages - Buyer Breach

1. Buyer breach, buyer has goods: K Price

2. Buyer Breach, Seller has goods: K price - resale price.

No resale? K price (+ maybe provable lost profits if volume seller)

Lost Profit Volume Seller Damages - UCC

PROVABLE lost profits.

S must be able to sell as much as they have of huge inventory - "regular inventory" compensate the expectation, would have sold to breacher and what you sold to new person.

Anticipatory Repudiation

UCC and Common Law

1. UNAMBIGUOUS Statement/conduct that repudiating party won't perform

2. prior to performance due

Excuses performance and gives rise to immediate claim for damages for breach, UNLESS claimant has finished performance, then must wait until date of performance due to sue

Retraction of Anticipatory Repudiation

Can retract so long as: other party has not material changed position, and it is timely. If timely, duty to perform is reimposed, but performance can be delayed until adequate assurances are provided.

Uncertainty of Performance


1. Words/conduct give reasonable grounds for insecurity

2. other party demands adequate assurances in writing and

3. can suspend performance if commercially reasonable to do so until receipt of adequate assurances

Material Breach

Common law: only material breach excuses performance of other party - question of facts

Substantial performance is not material

Breach - QUALITY of performance

1. Material = excuses performance and can recover expectation

2. Minor = must perform, but can recover cost of fixing breach

Material/Substantial, but not damaging breach? can recover expectation of value at full performance

Breach - QUANTITY of performance

less than half = material. - NOT K AFTER MATERIAL BREACH - recovery is in quasi K.

Express Condition

Strict compliance generally required for express conditions. Exception - when is for personal satisfaction = honest/good faith satisfaction, courts will look to see if a reasonable person would be satisfied.

Can waive, benefited party conspires to make it not happen= waived


K is executory on both sides, and it can be cancelled.

Accord and Satisfaction

SUBSTITUTED performance. Accept different performance from original agreement. New agreement performed = original agreement cancelled. can recover on either if there is a breach, obviously not both, no windfalls in contracts this isn't torts.


Instead - parties to existing K accept a different agreement in satisfaction of existing obligation, substitutes for old one and can't sue on old one.


same performance, different party. BOTH PARTIES agree to substitute new party for one of them. Excuses substituted party= no liability.

Contrast with delegation, which does not require agreement of both parties and does not excuse the substitute

Damage/destruction of subject of K

Ability vs Cost. Ie, building a house vs repairing an existing house. House destroyed during building, so sorry rebuild, house destroyed during renovation well, you are excused there is no house to renovate and you aren't building one

Death and your K!

terminates offers only not K's. unless you are super special service provider.

3rd Party K's

Only intended Benes have K rights.

When do rights vest?

1. Knows of

2. Relied or agreed

Promisor and Promisee

Promisor = makes promise to benefit 3rd party

Promisee = obtains promise to benefit 3rd party

3rd Party K Damages

1. Bene can recover from Promisor OR

2. Promisee can recover from Promisor

bene generally can't recover from promisee, exception is a creditor bene who can recover the preexisting debt from promisee

defenses = any promisor could have asserted against promisee

What kind of K has no 3rd party at formation?

Assignment! Gratuitous = can revoke, but no consideration is required for it to be valid

Parties to an assignment!

Assignor: k party who transfers rights - for consideration cannot recover from obligor

Assignee: Not party to K, can enforce K from obligor

Obligor: other party to the K, sa,e defenses against assignee as against assignor

"Prohibits assignment"

takes away the RIGHT to assign not the power to assign. thus assignment valid, but assignor has breached.

Common Law: bars assignments that substantially change obligor duties (paying $ to a different person not substantial)

"Invalidates assignments"

No Right or POWER to assign

Assignor is in breach, and the assignee has no rights to enforce

Whoops, forget to tell the obligor!

Payment to assignor is effective without notice of assignment

modifications without notice of assignment are valid as well.

Warranties of an Assignor For Consideration

1. right assigned exists

2. not subject to existing defenses

3. assignor will not impair value of assignment

not warranting what obligor will do

Multiple Assignments! (dirty double dealing!)

Gratuitous: last in time generally wins

For Consideration: 1st for consideration wins (amount of consideration irrelevant!)

Subsequent BFP assignee for consideration: exception, will win when: without notice, first to obtain payment/judgment/novation/indicia of ownership


its a transfer of duties to perform under K to a 3rd party

generally duties are delegable is not prohibited or if not specialized personal service

Liability re: delegation

1. delegating party = always liable

2. delegatee (new performer) no rights against obligee, only liable if they received consideration from delegator

Delegation for consideration

obligee (person owed duty) can recover from delegatee if intended 3rd party bene with vested rights. gah.