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96 Cards in this Set

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  • Back
If a K law produces an unjust result...
look to quasi-K
A unilater K is what?
one that results from an offer that expressly requires performance as the only method of acceptance
reward, prize, contest OR expressly requires performance FOR ACCEPTANCE.
If the K is a sale of goods, apply what?
Art II of the UCC.
What if the sale is of pesonal property?
NOT a sale of goods.
For UCC (sale of goods) the K must involve sale of tangible personal property
If the K is for services? UCC?
NO. Common law.
What amount is required for the UCC to apply?
NO amount.
All sale of goods. Merchants or otherwise.
When both sale of goods and sale of services is involved...UCC or common law?
Whichever is MORE important.
Yo yo or Yo Yo MA?
In a mixed deal (services and goods) that expressly DIVIDES payment, UCC or common law?
BOTH, to each side.
In WV under Art IIA of the UCC, does 2a apply to LEASES of goods?
YES. If DEFAULT by lessee, or priority contest b/w the lessor and 3rd parties, Art 2A is similar to Article 9.
Must an offer contain all the terms?
No. BUT watch out for a missing price in a sales K.
in the sale of real estate, there must be price AND description or its not an offer.
If S offers to sell her car to B with no price, can that be an offer?
YES, if the cour concludes that parties so intended.
Are vague or amgibuous terms an offer under the UCC or common law?
NO, neither. Watch for "fair price." Compare with no price where court may conclude an offer exists if parties so intend.
"all" "only" "solely" are words that should trigger the potential presence of a _________.
requirements contract.
A requirements K is one where the buyer of the sale of goods...
can state the quantity in terms of the buyer's requirements... for five years,
all of my needs,
no specific # required.
Requirements Ks must be limited by ________.
the exception that no unreasonable disproprotionate in line w/ prior demands
Generally, is an advertisement an offer?
NO, generally.
But it can be if
it is in the nature of an award
it is specific as to quantity and expressly indicates who can fur coat, first come first served.
What are the four ways to terminate a K?
1. lapse of time
2. by words or conduct of the offeror.
3. By CONDITIONAL acceptance (if, provided that, so long as, but, on the condition that)
4. Additional terms to a common law K. (mirror image rule)
To terminate an offer by lapse of time, what is around the right amount of time?
One month?
If a question says the date of the offer and the date of the acceptance, THINK lapse.
What are two ways an offeror's language would constitute a revocation?
1. by unambiguous statement TO offeree of unwillingness to contract OR
2. Unambiguous CONDUCT indication an unwillingness to K THAT THE OFFEREE is AWARE OF.
If a revocation of an offer is sent by mail, when is the revocation effective?
Can an offer be revoked after it has been accepted?
1. one where the offeror has promised to keep the offer open AND this promise is supported by consideration (this is an option)
2. An offer cannot be revoked for UP TO THREE MONTHS if the offer is to buy or sell goods, signed written promise to keep open and party is a merchant. (FIRM OFFER RULE)
3. if there has been reasonably foreseeable detrimental reliance on the offeree
4. start of performance to enter into a unilateral K make it irrecovable for a reasonable time to complete.
If a merchant promises to keep a offer to sell goods open for three months, firm offer?
NO, not signed.
IF I offer to sell my computer to Bob, give him a signed promise to keep it open for 3 months, firm offer?
No, I'm not a merchant.
If a merchant in a signed writing promises to keep an offer open for 6 months, firm offer?
Yes, but only for THREE months.
If a merchant in a signed writing promises to keep an offer open but states not time period, is this a firm offer?
Yes, but the court determines the time. Not longer than three months.
Does the firm offer rule apply to sale of real property?
NO. Only to sale of goods.
If there is doubt as to whether the work done is actually performance, its __________.
Preparation. Not, a start of performance, can revoke offer.
this is for the unilateral K.
Does a counter offer kill the first offer?
If the offeree asks "will you take 9,000?" Counter offer?
NO. Bargaining.
If an acceptance insists on a term (arbitration), is the acceptance valid?
NO, its a counter offer and it kills the first offer.
If an "acceptance" adds additional terms, what question should you ask?
If this is a sale of goods.
If not, then the mirror image rule applies, the acceptance is not valid
If it is a sale of goods, UCC 2-207 applies.
Also, if the term is insisted upon, then IT IS NEVER AN ACCEPTANCE.
If for the sale of goods, additional terms are added in the acceptance, is it an acceptance? Is there a K? Are the additional terms part of the K?
Under the UCC, a response to an offer which creates new terms, but does not make them a condition of acceptance, is a "seasonable expression of acceptance." CONTRACT
If one party is a merchant the additional terms is merely a proposal to be separately rejected or accepted. If BOTH are merchants, GENERALLY the additional terms are part of the K unless it materially changes the offer or the offeree objects to the change.
If a party dies prior to acceptance, is the offer terminated?
Unless there is
an OPTION or
Part performance of a unilateral K.
Who can accept an offer?
A person who knows about the offer who is the person to whom it was made?
Can an offer be assigned?
Can an option be assigned?
Are Ks assignable?
Is full performance acceptance (unilateral K)?
BUT remember the need to notify. There will always be a geography issue. the performer must notify the offeror that the performance is complete.
Is start of performance an acceptance? What question should you ask?
It depends. Ask whether the K is unilateral or bilateral.
Start of performance is acceptance of an offer to enter into a bilateral contract but not acceptance of a unilateral K.
If O offers to 1000 for X to paint O's house and the offer is silent as to methods of acceptance, and X begins performance, is that acceptance so that X must complete?
YES. The offer was silent as to performance so its a bilateral K. Start of performance is acceptance to a bilateral K.
In a unilateral K, is start of performance acceptance?
NO. It is only the completion of performance.
Can an offeree accept an offer by promising to perform?
When is an acceptance effective if sent by mail?
Generally all other communications are effective when received. IF
MADE in a manner and means invited AND the offeree has not already sent a rejection.
If I send a rejection of an offer by mail (effective when recieved) and then an acceptance two hours later (effective when sent), what result?
It depends on what arrives first...
if mail rejection and then change mind and fax acceptance, acceptance.
When the seller of goods send the wrong goods, is it acceptance?
YES, and breach UNLESS it is accompanied by an explanation...then it is a cournter offer and no breach.
When can an agreement NOT be a K?
lack of consideration or cpaacity on the offeree, or statute of frauds, or existing law prohibit the agreement or misrepresentation or duress or unconscionability or ambiguity in word sof agreement, or mistakes at time of agreement as to material facts affecting the agreement.
What is consideration?
BARGAINED FOR legal detriment.
What are the forms of consideration?
1. performance (doing something not legally obligated to do)
2. forbearance (not doing something you have a legal right to do)
3. promise to perform
4. promise to forbear
S promises to sell you her watch unless she changes her mind...K?
NO. Its an illusory promise. There was no consideration.
What is an adequate consideration?
ANYTHING. A peppercorn.
Is past consideration consideration?
Generally no. If I save bobby's life and his dad promises to pay for my law school tuition as a result, and doesn't no K, no consideration. UNLESS the deal was expressly requested and there is an expectation of payment.
If one has a pre-existing contractual or statutory duty to do something, can it be consideration for a promise?
BUT, if there is an addition or change in the performance that was already legally obligated or contractually...then it is consideration.
Also, if there is an unforeseen difficulty excusing performance,
OR if there is a third party promising to pay extra for the contractual duty.
What is the test under Article 2 (sale of goods) to the pre-existing legal duty rule?
There is no preexisting legal duty rule in Article 2, the test if good faith for changes in an existing sale of goods.
S contracts to buy widgets for $300. B accepts and then S tells B that $350 is least he can sell for and B promises to pay that. Must B pay the 350?
YES, if
1. S was acting in good faith

You do NOT need consideration to modify a sale of goods K. Just good faith.
Is part payment of a debt an consideration for release of the debt? What should you ask?
Ask if the debt is due and undisputed.
If so, then part payment is NOT consideration.
EARLY payment might be though.
Must there be consideration for a written promise to satisfy an obligation for which there is a legal defense?
This writing is a consideration substitute.

In majority, a SEAL is not a consideration substitute.
What is the MOST IMPORTANT consideration substitute on the bar exam?
Here is how it works:
there is reasonable, detrimental and FORSEEABLE reliance on a promise that makes enforcement of the promise necessary to avoid injustice.
WATCH for someone doing something that no one asked her to do but that was foreseeable.
Who lacks capacity?
1. infants (under 18)
2. mental incompetents
3. intoxicated persons if the other party has reason to know.
Can an incapacitated person sue the other person for non-performance?
YES, but not the other way around.
When an incapacitated party reatains the benefits AFTER gaining capacity, that is WHAT?
Implied affirmation. The other party can now enforce the agreement.
Watch for:
1. agreement before capacity
2. capacity is gained
3. the party then continues to keep the subject matter of the K.
A person w/o capacity contracts for food/shelter/clothing/medical care...
That person is legally obligated to pay for those things under the liability for necessities exception to incapacitated persons.
If a K is "within" the statute of frauds, then what?
special proof that a K exists is required. usually by performance or a writing.
If the statute of frauds is "satisfied" then what?
The performance or writing has been used a key to unlock the statute of frauds defense.
If you marry me I will marry you...SOF?
NO, no consideration OF marriage.
If you marry me I will renounce my claim to property I own. SOF?
YES...needs a writing.
Promise by executor or administrator to answer for the debt of a decedent? SOF?
YES. Look for a claim of a personal guarantee.
A guarantee to pay, IF someone else does NOT pay. SOF?
Yes...needs a writing.
Look for a personal guarantee
H promises to pay for the paint to be delivered to P for P's use. SOF?
NO. there is no guarantee to pay if S does not. Not ansering the debt of another.
D commits a tort against P. X guarantees to pay P full payment of the damages. Is X's promise w/in the SOF?
YES. Its a guarantee to pay the debts of another. the primary responsibility is D's.
What is the main purpose exception to the SOF?
When the main purpose seems to be to benefit the promisor to pay.
EG: p is painting h's house. P buys paint from n and doesn't pay. H guarantees to pay N for the paint if P doesn't. SOF? NO. main purpose exception.
A service K not capable of being performed w/in a year of the time of the K? SOF?
YES. watch for MORE THAN A YEAR.
The possibility of earlier termination is IRRELEVANT. not CAPABLE of being completed is the Key.
P claims that H hired him to cut down every tree in WV. SOF?
NO...even if it could never be done in one year, its a task and not a time issue.
P hires H for the rest of her lie and H is 21. SOF?
NO. Life is never a SOF issue.
Transfers of real property for MORE than one year. SOF?
YES...need a writing.

EG: P claims D agreed to build a house on Blackacre, SOF? NO.
P claims that D agreed to sell BA to her for 400? (remember to include price and description...) SOF, yes.
P claims that D agreed to lease Blackacre to her for one year. SOF?
NO. It must be a transfer of interest in real property for MORE THAN ONE YEAR.
Sale of goods for $500 dollars or MORE? SOF?
Sale of goods for $500 dollars. SOF?
YES. Bar's favorite number here is $500 exactly. It IS w/in the SOF.
A lease of goods that totals $1000 dollars or more? SOF?
If the Statute of Frauds is satisfied, is there a SOF defense?
Does part performance of a services K satisfy the Statute of Frauds?
In a sale of goods K that is $500 or more, what should you ask in addressing whether the SOF is satisfied?
Ask whether the sale of goods was for ordinary delivered goods, ordinary undelivered goods, or specially manufactured goods.
In a sale of goods K that is $500 or more, that involves ordinary goods that are delivered?
There is no SOF defense if the goods are delivered. The SOF has been satisfied.
In a sale of goods K that is $500 or more, and the goods are NOT yet delivered? SOF?
YES. There is a statute of frauds defense...
UNLESS these goods are specially manufactured goods AND the maker has made a substantial beginning on the goods.
Can part performance by the buyer of a contract for real estate satisfy the SOF?
YES, in ANY of TWO of the following THREE...
1. full or part payment
2. possession
3. improvements
Does full payment of a K of real estate satisfy the SOF?
For a writing to satisfy the SOF, it must do what?
have all material terms and be signed by the defendant.
What must a writing have to satisfy the SOF if it is sale of goods K (UCC)?
signature of D (except for the answer the damn letter exception)
a quantity term.
What is the "answer the damn letter" exception to the signature requirement for a writing to satisfy the SOF in sale of goods cases and how does it work?
1. Both parties must be merchants
2. The person who received the signed writing WITH the QUANTITY term that claims there is a SOF defense, fails to respond w/in 10 days.
Then the writing w/ the other guys' signature satisfies the SOF and removes the defense.
In WV on Art 2A, leases of commercial property, for a writing to satisfy the SOF, there must be _________, _______, and ____________.
1. indicates that it is a lease
2. describes what is being leased
3. states the duration of the lease
Can judicial admission of a sale of goods agreement satisfy the SOF?
YES, if a statement is made by the Defendant that there was an agreement in pleading, testimony, deposition or motions.
When do rules of law require that someone have written authorization to execute a contract for someone else?
the authorization must be in writing if the K to be signed is w/in the SOF. The authorization must be of equal dignity.
In other words, if the K is w/in the SOF, and made by someone on behalf of someone else, then there must be a writing of the authorization to contract for the other.
When do RULES OF LAW require written evidence of modification of a written K?
Ask whether the K as modified satisfies the SOF.
If the deal w/ the alleged change is within the SOF, then the alleged modification must be IN WRITING.
Under common law, what is the effect of a writing which requires that all modifications be in writing?
Under common law, that clause is not effective. The K language is ignored.
This is not the case under the UCC.
Under the UCC, what is the effect of a writing which requires that all modifications be in writing?
The clause is effective unless waived.
I sell my bike to Bill for $400, the K is in writing and it states that all modifications of the agreement must also be in writing. What effect?
The contract provision that specifies that K modifications be in writing is effective unless waived.