Term
| Factors to voluntary assent |
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Definition
Capacity
Fraud
Duress
Misrepresentation
Mistake
Conconscionability
Illegality
Releases
Public Policy |
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Term
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Definition
1. Factors to voluntary assent
2. Statute of Frauds
3. Offer and Acceptance
4. Reliance/Consideratioin
5. What is the cause of action
6. Was there a breach?
7. Remedy |
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Term
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Definition
1. Actual Reliance
2. Reliance was reasonable and forseeable
3. The reliance was desired by the promisor |
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Term
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Definition
| refusing to allow a promisor to avoid enforcement by argugin no consideration in some situations in which the promisee has relied on the promise |
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Term
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Definition
1. longer than one 1 year
2. sale of an interest in real property
3. answeriing for the debt of another
4. sale of GOODS for the price of more than $500
5. Between merchans, can reject a written contract within 10 days after it is recieved |
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Term
| Framework for offer and acceptance |
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Definition
1. Has someone made an offer
2. Is the offer still open when the offeree tries to accept
3. Has the offeree accepted the offer |
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Term
| Situation in offer and accpetance dealing with sides not being serious |
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Definition
1. Neither serious: there is no reason to enforce the deal
2. offeror S, offeree NS:deal is enforceable if there is appearable and actual belief of true deal for the offeror
3. Offer NS, offeree S: if there is no indication that th offer is evidently in jest, then there may be a valid offer |
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Term
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Definition
1. Between merchants
2. Over goods
3. With an option which is not revocable for lack of consideration during the time stated
4. If no time states, reasonable amount of time not to exceed 3 months |
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Term
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Definition
| Contract at your own risk |
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Term
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Definition
| Are held to their contracts. Assumption is that you read the terms before you enter into contract. May be negligence if they do not read. EXCEPTION: being lulled into the promise |
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Term
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Definition
1. If the imparement interferes with cognition to the point where the person can not understand the consequences, then we do not hold
2. If the imparement is volitional, where the person understands but can not control their will, if the person entering into contract has reason to know of the impairment, do not hold |
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Term
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Definition
1. Threat
2. Cause of threat
3. Impropriety of threat
4. Threat overcomes the will of the promiser
5. No reasonable alternative available |
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Term
| Important things to know about duress |
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Definition
1. Withholding payment is not a threat to create duress
2. Financial dire on one side does not cause duress |
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Term
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Definition
1 False assertion
2. Of a material fact
3. And it was reaonable to rely upon |
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Term
| Important things for misreprentation |
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Definition
1. False assetion must come from person wanting to enforce
2. Material fact, not small fact or opinion
3. Silence generally is not misrepresentation, there needs to be active concealment or revealing only a portion of the facts
4. When there is a duty to speak, silence can be misrepresentation |
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Term
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Definition
1. Bad information
2. To a basic premise of the deal
3. Of material influence on the promisor's assessment of the deal |
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Term
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Definition
1. Known injury/unknown complication: threat like a mistaken prediction about the future, do not allow the party to back out
2. Unknown injury/unknown existing condition: Maybe allow recession |
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Term
| Things to look at for mistake |
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Definition
1. Allocation of risk
2. If one side should have known
3. Mistake in buiness v mistake of an existing fact |
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Term
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Definition
1. When there is unequal bargaining power creating an absence of meaningfl choice (procedural)
2. If terms are reasonable, one sided, or lack justification (Substantive) |
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Term
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Definition
1. Clear, unambiguous and explict
2. If present summery judgement is due |
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Term
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Definition
1. Nonmonetary
2. Expectation
3. Restitution |
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Term
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Definition
1. Usually notdone unless
2. there are special circumstances or
3. Public interest is directly involved
4. Can not be done for personal services |
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Term
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Definition
More common than specific performance
2 Restictions, long duration or if prohibition is too broad |
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Term
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Definition
1. Specific performance
2. Negative injunction
3. Excuse from performace |
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Term
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Definition
| The arguement by one party tha there has been a benefit conferred for which there has been no compensation and some compensation is appropriate |
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Term
| Formula for monetary remedies |
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Definition
1. The fair market value/contract price (if the buyer breaches) of what was promised MINUS
2. Avoiable consequenes actually saved MINUS
3. Avoidable consequenes that could have reasonibly been saved PLUS
4. Incidental damages PLUS
5. Consequential damages
6. All damages must be forseeable and arise naturally out of the deal |
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Term
| Factors to consider with monetary expectation remedies |
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Definition
1. Avoidable consequences
2. Reasonible certainty
3. Foreseeability
4. Rule concerning lost profits |
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Term
| Calculating Breahces by Employers |
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Definition
1. Get the value of the remaining contract MINUS
2. Any wages earned during the period and
3. Any wages which could have been earned through reasonible diligence
4. Work which is "different and inferior" does not count |
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Term
| Forseeability for damages |
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Definition
1. Need to arise naturally out of the breach
2. Need to be a forseeable consequence of breach at the time of the contract |
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Term
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Definition
1. Need to be assesed with a reasonible amount of certainty, those which are lef to seculation and conjecture are not awarded
2. When only one side offers evidence, it is stronger
3. An alternative if evidence for lost profit is too specualtive is to bring suit for wasted expendiutures created by reliance on the other party |
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Term
| Ways to measure the benefit confirred for restitution damages |
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Definition
1. Increased wealth of the recipient
2. How much the recipient would have to pay for the services recieved |
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Term
| Breachers and restitution |
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Definition
1. They may recover
2. Formula is the amount of damage caused by the breach MINUS
3. The value of work done
4. If it is a negative value, this is mone that goes to the breacher |
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Term
| What if you were going to lose money on the contract? |
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Definition
| You can still recover the value of the services even if you would have lost mone and been unable to recover in a suit on the contract |
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Term
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Definition
1. An attept to identifiy the harms of a breach during contract negotiation
2. Can not impose a penalty for the breach |
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Term
| Test for liquidated damages clauses |
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Definition
Enforce if
1. damages are difficult to ascertain at the time of the making of the deal
2. The damages identified by the provision are a reasonble estimate of probable or actual damages
3. One side can not be put in a position better than if the contract had been completed |
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Term
| When looking at conditions, the general guidelines are |
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Definition
1. When it doubt, treat it as a promise
2. See if the deal was modified or the condition waved
3. See if the condition was met becuase it was substantially (no perfectly) met
4. Excuse performance but require restitution |
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Term
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Definition
1. Over broad ones may be treated as illusory promises
2. A contract with a "satisfaction" clause must be execute in good faith |
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Term
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Definition
1. Mainly if the essence of the deal is met but we want to look at
2. The intent
3. The harm to the victim
4. What will happen to the breacher if the other party's performance is excused
5. See if it involved goods, if so perfect tender rule |
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Term
| What to do when the other party has anticipatory repudiation |
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Definition
1. Await performance by the other party
2. Resort to any remedy for breach
3. In either case, suspend his own performance |
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Term
| Requirements for a demand of assurances |
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Definition
1. Must have had reasonible grounds for insecrity regarding the other party's performance under the contract
2. Have demanded in writing adequate assurance of other party's future performance
3, Have not received from the other party such assurance |
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Term
| Dealing with unforseen factors concerning conditions |
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Definition
1. Impossibility and Impracticality: Where performance is not possble or would be far more problematic than originally planned
2. Frustration of purpose: Where the unanticipated event interferes with the purpose of the deal
3. Force Majeure Clause tries to identify some of these events |
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Term
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Definition
1. Language does not have to be ambiguous on its face to use extrinsic evidence, not limited to the 4 corners
2. When deciding what extrinsic evidence to use, refer to the Parole evidence rule
3. Interpret against the drafter |
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Term
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Definition
1. Extrinsic evidence of
2. Prior or contemporaneous agreements of negotiations is not admissible to vary or contradict
3. A fully intergrated (final and complete) agreement |
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Term
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Definition
| 1. Does not exclude evidence for voluntary assent issues |
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