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82 Cards in this Set
- Front
- Back
Firm Offer |
Must be in writing Must be signed by merchant |
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What is the maximum duration of a firm offer? |
3 months |
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If rejection is sent before acceptance? |
The first letter to arrive wins |
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When will a counteroffer not result in a contract under UCC? |
If you materially change terms If I reject within reasonable time |
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Is giving back a gift valid consideration? |
No |
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Is a promise to give a gift valid consideration? |
No |
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Promise to pay money after you saved my dog? |
Not enforceable |
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Promise to pay a debt that is barred by the statute of limitations? |
Enforceable!! |
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Promise to pay a debt that was discharged by bankruptcy? |
Enforceable |
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Promissory estoppel? |
Detrimental reliance and injustice |
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I give you a check for part of an undisputed amount owed? |
You can accept the check and still get the other part owed |
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I owe you money, but I don't have it so we agree to a new lower amount? |
You can't come after me for the old debt |
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I pay you part of a disputed amount |
If you accept, that's what you get and nothing else |
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Contract with a minor |
Voidable, but can ratify at 18 |
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Contract for necessities with a minor? |
they must pay the reasonable cost of the goods/services |
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Contract with person who is mentally ill/insane? |
Contract is null and void |
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Duress v. undue influence? |
Wrongful threat v. unfair bargaining position |
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Unconscionability? |
Must be unfair at the time the contract was made, not after a boom in demand |
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Unilateral mistake? |
Only a defense if other side knew I was mistaken or there was a clerical error |
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Remedy for mutual mistake? |
Rescission |
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Intentional misrepresentation? |
Saying something I knew or should have known was false with the intent to induce |
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Negligent misrepresentation? |
I forgot to tell you something or left something out and you relied on that |
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Non compete clause |
Must be reasonable |
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Requirement of statute of frauds |
Must be in writing |
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What is subject to the statute of frauds |
Marriage Year Land Executor of an estate Goods of $500 or more Surety |
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What does the writing require under SOF? |
Parties Subject matter Material Terms Signed by person to be charged |
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When does SOF not apply to "Year" contract? |
If services have been fully performed |
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When does SOF not apply to "Land' contract? |
If payment + possession or improvements |
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When does SOF not apply to "Surety" contract? |
If purpose of guaranteeing the debt is to benefit myself |
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When does SOF not apply to "Goods" contract? |
1. If some of the payment or part of the goods have been submitted 2. If merchant sends a written confirmation of the order, is signed by the merchant, includes quantity and other side doesn't object within 10 days of receipt |
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When is parol evidence always admissible |
Fraud Mistake Duress Condition Precedent Course of Dealing Trade Custom |
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Modification at common law? |
Requires additional consideration |
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Modification at UCC? |
Requires good faith |
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No carrier - risk of loss if seller is a merchant? |
Risk is on seller until buyer takes possession |
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No carrier - risk of loss if seller is not a merchant? |
Risk is on seller until he tenders the goods/makes goods available to the buyer (they're ready to go) |
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Carrier - risk of loss in shipment contract? |
Risk of loss shifts to buyer once goods are delivered to carrier |
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Sample language of shipment contract |
FOB Seller |
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What is the default - shipment or destination contract? |
Shipment |
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Carrier - destination contract - risk of loss? |
Risk of loss shifts to the buyer when goods are delivered to the correct destination |
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Sample language destination contract? |
Anything that is not FOB Seller |
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If a condition is not performed? |
Other party is discharged from performance unless 1) waiver of condition; 2) bad faith; 3) avoiding forfeiture (suffering a great loss) |
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If seller had reasonable grounds for thinking that buyer would accept nonconforming goods, then seller can cure if... |
Notice is sent to buyer and correct goods are delivered in a reasonable amount of time |
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If you receive nonconforming goods before due date, then seller can cure if: |
They send reasonable notice and deliver conforming goods on time |
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Do I have the right to cure in an installment contract? |
Yes if it can be fixed |
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When is impossibility not a defense? |
If parties contemplated it If it is only temporary |
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If a party unequivocally repudiates the contract? |
You can sue ASAP |
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Time for responding to a demand for assurance of performance? |
Reasonable time If UCC - within 30 days |
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Must a demand for assurance of performance be in writing? |
Only for UCC |
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When can a repudiation not be revoked? |
Other side has sued Other side accepted the repudiation Other side relied on the repudiation |
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Definition of expectation damages? |
Put you in the position had the contract been performed |
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Equation for expectation damages? |
Contract price - what you already received + extra costs |
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Requirement of expectation damages? |
Must be foreseeable with reasonable certainty |
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Definition of reliance damages? |
Put you in the position you were before the contract |
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Equation for reliance damages? |
Unreimbursed costs + not sure if I can get expectation damages |
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Definition of restitution damages? |
Get back the value you gave someone else |
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Can you get restitution and expectation damages? |
No |
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Equation for restitution damages |
Market value of services you gave |
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Definition of consequential damages? |
Foreseeable costs due to your breach |
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Definition of incidental damages? |
Out of pocket expenses |
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Definition of liquidated damages? |
Determined at the time we made the contract |
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Requirement for liquidated damages? |
Must be reasonable and not a penalty (not more than 10% of contract price) |
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What damages should a breaching party seek? |
Quantum meruit |
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Equation for quantum meruit? |
Reasonable value of your services - damage you caused |
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If seller wants to recover and goods haven't been resold yet? |
Contract price - market price |
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If seller wants to recover and goods have been resold? |
Contract price - resell price + incidental damages in reselling them |
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Lost volume seller (lost profits)? |
Expected profit + my costs - resale price |
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If buyer wants to recover and he already purchased replacement goods? |
Contract price - cost of replacement goods |
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If buyer wants to recover and he hasn't purchased replacement goods yet? |
Contract price - market price at the time you learned of the breach |
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Three equitable remedies? |
Specific performance Injunction Rescission |
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When is specific performance permitted? |
Unique item or sale of land |
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When is injunction permitted? |
To prevent irreparable harm (employment contracts, trade secrets) |
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When is rescission proper? |
Mistake Misrepresentation Lack of capacity Duress |
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If an incidental beneficiary relied on our contract, does he have rights to enforce? |
No |
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When can an intended beneficiary sue? |
He learned of contract and relied He was told about contract and accepted |
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Clause says assignment is prohibited? |
Assignment is still valid, but can sue for breach |
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Clause says assignment is void? |
Any assignment would be invalid |
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Clause says there shall be no delegation of duty? |
Then you may not delegate |
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Assignments and delegations are generally... |
valid |
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Is notice required for assignment or delegation? |
No |
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Does other party have to agree in advance to assignment or delegation? |
No |
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When can you not sue the person who assigned their duty? |
If you executed a novation/release |
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When is assignment not valid? |
Unique/personal service only I can perform (applies to expertise too) ; or Assignment would materially risk that you won't get your performance (ex: lack of experience, insolvency, business trouble) |