Term
| Article II applies to what? |
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Definition
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Term
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Definition
| Goods are moveable property. |
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Term
| Does Article 2 of the UCC apply to the sale of Whiteacre? |
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Definition
| No, Article of the UCC does not apply to the sale of real property. |
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Term
| Can the sale of a toupee by a non-merchant to another person be goverened by Article II of the UCC? |
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Definition
| Yes. Article II of the UCC applies to the sale of goods and does not have to be a sale made by a merchant, nor does the K price matter. |
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Term
| What type of Ks does the common law apply to? |
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Definition
| It applies to all Ks other than contracts that deal with the sale of goods. |
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Term
| What happens when you have a K that is mixed. In other words, the K has the SOGs and the service or the sale of rela estate. How do you know which law to apply? |
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Definition
| To decide whether the CL or the UCC should apply, determine, which part of the contract is the core part. If at the core of K involves the sale of goods the UCC applies, if it is the sale of real estate the Article II applies. Core v. incidental. |
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Term
| What bodies of K law does NY test on? |
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Definition
| NY K common law, Article 2 of the UCC (sale of goods) and Article 2a (lease of goods) of the UCC. |
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Term
| Does Article 2a of the UCC apply to personal or commercial leases? |
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Definition
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Term
| Does Article 2a of the UCC apply to the lease of real property? |
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Definition
| No. It applies only to the lease of goods. |
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Term
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Definition
| A K is a legally enforceable agreement. |
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Term
An express K is created by a party's words _______ or _______ .
An implied K is created by a party's _____. |
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Definition
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Term
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Definition
| Quasi K ios an equitable remedy that is aserted when K law prduces an unfair result, which generally results in the unjust enrichment of one party. |
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Term
| Marilyn Monroe orally agrees to creat 5 music videos for MTV over the course of 5 years. After her first video bombed, MTV decided not pay Monroe. MTV argues that they do not have to pay her because she does not have a legally enforceable K. Can Monroe r |
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Definition
| MTV's assertion is true, Monroe's K is not enforceable because it is a 5 year K, which is governed by the Sof. Even though she is left without a remedy at law, she is not without a remedy. monroe may argue that equity demands that she be remunerated for her work. The law of Ks here provided an unfair result that resulted in the unjust enrichment of MTV at Monroe's expense. |
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Term
| What can a P recover in quasi K? |
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Definition
| Not what the bargian price or agreed upon fee, but P may recover the reasonable value of the benefit conferred. |
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Term
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Definition
| A unialteral K can only be accepted by performing. |
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Term
| How can a bilateral K be accepted? |
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Definition
| Through any reasonable means, it is more flexible than a unilateral K. |
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Term
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Definition
| An offr is a manifestation to b legally bound to do something, which is created by words or conduct. |
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Term
| Is an advertisement an offer? |
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Definition
| The general rule is that an advertisement is not an offer. An ad can only be an offer where it expresses a quantity and who may accept. Ex: 1 dress available, for $1, first come, first served!" |
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Term
| If the terms of an ad are indefinite, i that ad enforceable as a K? |
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Definition
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Term
| Is a requirements K valid if it does not state a quantity to a seller or supplier? |
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Definition
| Yes. A buyer may say that she will buy all her coffee beans from a particular merchant for 5 years at 1 per can. This would be an legally enforceable requirements K. |
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Term
| Can a buyer expect a merchant to who has K to send 1,000 cans of coffee a year suddently require the seller t deliver 8,000 cans? |
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Definition
| No. A buyer may not take seller by surprise. |
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Term
1. At CL if a K did not provide a price term was too ____________ , therefore _______ .
2. Under the UCC Article 2 if a K does not have a price the K will be ___________ because the UCC will __________ in a _________ price. The term is _________ into t |
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Definition
1. indefinite, unenforceable
2. enforceable, fill, reasonable, read |
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Term
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Definition
| An offer is dead when it lapses based on the terms in the offer or if a reasonable time has passed since the offeror presented the offer. |
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Term
| I offer to sell my blue beetle to my neighbor. My offer provides that he may purchase it May 4, 2007. He comes with a money order for $7 on June 6, 2007 to purchase the vehicle. Wha ti sthe result? |
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Definition
| The offer is dead and my neighbor cannot accept the offer. |
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Term
| Revocation of an offer may occur if offeree has not accpeted by the date set by the offeror or it may be revoked when there is no particular date upon which the offeree must accept, but accpetance is too remote. Can the offeror revoke? How? |
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Definition
| An offeror can revoke an offer. He may do so directly or indirectly. |
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Term
| What is is deemed direct and indirect revocation of an offer? |
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Definition
| A direct revocation by an offeror is one that is unambiguous and directly stated to the offeree indicating that he has changed his mind. An indirect revocation of an offer is one that is unambigously expressed through his conduct AND such conduct is made apparent to the offeree. |
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Term
| Generally an offeror may revoke an offer at any time before acceptance. There are four situations, however, where a offeror may not revoke. What are they? |
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Definition
| Offeror can revoke at any time before the offer is accepted, except in 4 circumstances: 1. option K where there is consideration, 2. Reasonably foreseeable reliance (generally deals with subctractor /contractor relationship), 3. On th MBE, when a offeree begins work on unilateral K, not eht atin NY a offeror can revoke all the way until completon because in NY a offeree has not accepted until he has completed his obligation under the agreement. 4. A firm offer by a merchant under Art. 2 : signed wirting by the merchant--cannot revoke even without consideration. |
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Term
| Under the UCC Art. 2, hw long is a firm open held open? |
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Definition
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Term
| Is every signed written offer by a merchant a firm offer that requires a merchant to keep the offer open for a particular/reasonable amount of time? |
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Definition
| No. The writign must include a promise to keep the option to open (not to revoke), if not it is not a firm offer under th Art. 2 of the UCC. |
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Term
| Under CL, can an offer to sell real property be revoked even if there is a promise not to revoke for a particular time? |
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Definition
| Under CL, there is no obligation for the offeror to keep an offer open unless there is consideration. there is no firm offer here because that applies to a SODs under Art. 2, which does not require consideration. |
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Term
| In NY, can a signed written offer to not revoke an offer to sell real property be enforceable without consideration. |
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Definition
| NY, differs from the CL. NY, does not require consideration for an offer to sell real property to remain open to the agreed time of the option. |
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Term
| Under what circumstances does an offeree's conduct equate to the rejection of an offer? |
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Definition
1. When the offeree makes a counter offer, the offer is no longe ron the table. Bargaining, however, does not constitute a counteroffer (question, will you take... that is bargaining v. I will only pay... that is a counteroffer).
2. When an offeree makes a conditional offer that acts as a rejection of the offer....conditions negate the offer.Therefore, I accept as long as... is a rejection.
3. An acceptance containing additioanl terms operates as a rejection under CL (known as the mirror image rule)... under Art. 2 this is not a rejection, however. |
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Term
| Under Article II of the UCC, if terms are added to an original offer that is accepted, they become part of the K only when.... |
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Definition
1. Both parties are merchants
2. The term is not a material change
AND
3. The offeror does not object w/in a reasonable time. |
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Term
| hat is considered a material cahnge in te context of an accepted offer under Article II of the UCC? |
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Definition
| A material change is a change that would caus the offeror hardship or surprise. A changed term, however, tha ti sconsidered a custom in the industry will not be considered a materil alteration to the offer. |
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Term
| If an offeror does not want any change to the offer wha ti sthe easie thing he can do? |
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Definition
| The offeror can make a prompt rejection of the amendment of the K. |
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Term
| Does the death of either party before an offer has been accepted prevent the other from accepting the offer? Is there an exception? |
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Definition
| Yes. Yes, the exception to this rle is if the offeree gave consideration for the option to stay open then the offeroo may accept the offer, even if the offeror has dies durig the option period. |
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Term
| Can the offer control the manner of cceptance? |
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Definition
| It can, but usually does not. |
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Term
| If the offeror says Paint my house and I will give you $ 10,000, and the painter say I accept, will it be a breach of K if the painter never paints the house? |
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Definition
| Yes because a promise suffices here. If the language by the offeror was you can accept this offer only by painting my house. Then accepting it verbally will not suffice. Here, performance is acceptance. |
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Term
Is start of performance equate to accpetance in a bilateral contract?
Is start of performance in a unilateral K acceptance? |
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Definition
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Term
| If X says to painter paint my houe and I will give you 10k, and the painter does not respond, but begins to paint, has he officially accepted? |
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Definition
| Yes. Starting the job is am implied promise in a bilateral K to finish the job. |
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Term
| Can improper performance constitute acceptance? |
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Definition
| Yes. If I offer BK Painting 10k to paint my house white and he paints my house maroon has he has accepted my offer and now I may sue him for breaching the K. |
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Term
| I order limp bizkit CD from CD retailer. They send me a LL Cool J CD, hve they accepted my offer? |
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Definition
| Yes and they breached. Theri performance is acceptance, even though it was improper. Their performance, nonetheless allows me to recover for the breach of the K. |
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Term
| Under Article II of the UCC, if the offeree supplies the offeror with something similar, but not exactly what the offerror ordered is there anyway the offeree can avoid breach? |
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Definition
| Yes. The merchant may in response to the order send another product that was not ordered by the offeror and place a note with the product saying this product is an accomodation, which I hope meets your needs. This is not an acceptance, but rather a counteroffer. Therefore, there is no breach. |
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Term
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Definition
| Silence cannot be acceptance when it is thrusted upon the offeree by the offeror. For example, the following is not acceptance, I leave a note in your mailbox, "I offer you my car for $8,000, I ill assume that you have accepted if I do not hear from you by 6 p.m. tonight. |
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Term
| When is acceptance effective by mail? |
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Definition
| The offeree's acceptance of an offer is irrevocable once it has been mailed. |
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Term
| When will a offeror's revocation of its offer be revocable by mail? |
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Definition
| It will be revocable by mail providing that the oferee receives it before the oferee has mailed his acceptance. |
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Term
| What happens if an offeree's acceptance by mail gets lost, how does that affect the acceptance? |
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Definition
| It does not affect the acceptance, it is still a valid acceptance. |
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Term
| The offer, however, can specify when the offer must be recived in order to be accepted. Therefore, if a offeror tells the offeree that his accetance must be received by May 4th, when does the offeree have to mail it in order for it to be a valid acceptan |
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Definition
| A valid accpetance will only be recognized if received on 5/4 irrespective of when it was mailed. Therefore, the mailbox rule may be altered by the express condition of the offer. |
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Term
| In the context of the mailbox rule, what happens when an offeree accepts and the subsequently rejects. |
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Definition
| The acceptance controls unless the rejection gets to the offeror first and the offeree relies on it. |
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Term
To clarify some rules:
1. Acceptance and then rejection: wha tis the rule
2. Rejection, then acceptance, what is the rule? |
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Definition
1. The mailbox rule applies, meaning the offere has accepted, unless the rejection gets to the offerror first and he reasonably relies on the rejection.
2. When a rejection is sent, and then an acceptance follows.... which ever gets there first controls. |
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Term
| What should I look for to see whether the offer was terminated? |
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Definition
| 1. lapsed: stated time or reasonable time has passed 2. Revocation by offeror, 3. Rejection by offeree, 4. Death of one party before acceptabce (option may save though). |
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Term
| What are the defenses aagainst the formation of K? |
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Definition
| 1. Under 18 (infancy), intoxicated or mentally incompetant. |
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Term
| What does a D have the right to do if he enters a K? |
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Definition
| He has the right to disaffirm the K: to avoid it. |
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Term
| If Jenna enter a K to buy Joe's firebird formula for 13K can she disaffirm the K if she is 17, but tells Joe that she is 19? |
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Definition
| Yes. she may disaffirm. all tha tmatters is the age of the purchaser at the time of the sale. |
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Term
| Can an incapacitate person affrm a K ever? |
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Definition
| Yes. An incapacitated person impliedly affirms a K if he retains the benefit of the K without complaint after regaining or gaining capacity. |
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Term
| Can Joey, a 44 year-old guy, who contracts with Ralph , 17, to sell his motorcycle disaffirm the K because of his age? |
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Definition
| No. We only care about the capacity of the minor. Joey has full capacity and therefore, is bound to his end of the K. |
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Term
| Are incapacitated people iable for K they enter for necessaries (food, shelter, clothing, medical care)? |
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Definition
| Yes, they are, but not under K, but rather the equitable theory of quasi K. This means that there will be some remuneration to theperson who Ks with the incapacitaed person. The remuneration for the necessary, will not be necessarily the K price, but wil be limited to reaonable value. |
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Term
| What are the defenses to contract formation? (10) |
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Definition
1. Incapacity (age, mental, intoxicated)
2. Duress
3. Misrepresentation/Disclosure about a material fact
4. Amguity of a Term
5.Mistake about a material fact
6. Lack of consideration
7. Illegality
8. Public Policy
9. SOF
10. Unconscionability |
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Term
| What are the defenses to contract formation? (10) |
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Definition
1. Incapacity (age, mental, intoxicated)
2. Duress
3. Misrepresentation/Disclosure about a material fact
4. Amguity of a Term
5.Mistake about a material fact
6. Lack of consideration
7. Illegality
8. Public Policy
9. SOF
10. Unconscionability |
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Term
| What does it mean to say that a K was made de to economic duress? |
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Definition
| A K is may be considered unenforceable due to economic duress when (1) a threat to break existing K unless they receive a better deal. (2) The other party agrees because they need to get the initial deal done. (3) There are no reasonable alternatives for the buyer who is subject to duress. |
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Term
| What are the two types of duress? |
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Definition
| 1. physical and 2. financial |
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Term
| You are taking a stroll in NYC. It begins to rain. You turn and see that there is a umbrella stand. Yesterday, the unbrellas wer $3. You run over to the stand and find tha tthe umbrellas are now $ 15. Can you argue financial duress? |
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Definition
| No. You had the option to buy an umbrella somewhere else if you did not want to pay that price. |
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Term
| When does a ambiguity of a term undo a K? |
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Definition
| When the ambiguity is such tha there as no meeting of the minds. The ambiguity in the term must be material. |
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Term
| Wha tis the result when there is an ambiguus term, but ne party has reason to be know of the ambguity? |
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Definition
| The K will be binding with the innocent party's mening governing. |
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Term
| If A asks the seller of a home is your foundation in condition? And the seller replies of course, and reasonably believes it... is buyer bound to a K if he finds out tha tthe foundation is in fact in poor repair? |
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Definition
| Buyer not bound. K may be undone even for honest misrepresentation, especially when it is material |
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Term
If A & B contract for the sale of a painting by Monet, but before performance they find out that it is a fake, is the K enforceable?
What if it is a Monet, but both parties believe it is orth 2 million, and not 1.5 million, which it is actually worth? |
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Definition
1. Unenforceable: material fact.
2. Enforceable: mistakes about market value not material fact. |
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Term
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Definition
| Bargained for legal detrimnet and benefit. |
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Term
| Consideration can take the form of |
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Definition
| promise, forebearance or performance. |
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Term
| Is a seller promise to sell consideration for buyer's promise to buy? |
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Definition
| This is a promise for a promise, which is considered valid consideration. |
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Term
| Is past consideration, consideration? |
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Definition
| No. Past consideration is not consideration at all. |
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Term
| Simon helps Jen move into a her new apartment. Later she offers Simon $300 for helping her move. Jen refuses to pay. Was there consideration on simon's part? |
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Definition
| No. Simon already performed. There was no valid consideration here because services rendered already occured. There was no bargained for exchange. There was a promise to pay, but nothin in return. |
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Term
| Is consideration in exchange for past consideration ever binding in NY? |
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Definition
| Yes. Even thought he general rule, and the MBE rule is that past consideraiton is no consideration at all... past consideration that is expressly stated in a signed writing and can be proven is enforceable in NY. |
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Term
| When is consideration considered adequate? |
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Definition
| The adequacy of consideration is irrelevant provided that there is a bargian for exchange. |
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Term
| When there is a prexisting duty what is the rule regarding consideration? |
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Definition
| When someone has already contracted to do something, for example clean your house and they K to clean it for 50 dollars. When they arrive if they demand 70 to clean the house without providing additional services the 20 dollars extr sould not be paid. There is noextra consideration here. The person has to provide consideration for the adidtional 20 dollars.... like clean a closet or something without additional consideration the 70 is not enforceable. Cleaner doing only what was promised to be done @50. |
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Term
| Under the MBE, the pre-existing duty rule requires additional consideration where there is pre-existing duty... in NY, can there be lack of consideration on one side of the deal? |
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Definition
| In NY, where there is a pre-existing duty to perform, and one party wants more out of the bargain, but does not want to give additional consideration, such a bargain can be validated if it is expresse din a signed writing.So bascally where there is a modification (signed writing) the pre-existing duty rule is not applicable. |
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Term
| Can the pre-existing duty rule be raised as a defense by a third party? |
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Definition
| No. Must be in prvity of K. |
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Term
| Does Article II require consideration for modifications to a pre-existing duty or agreement? |
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Definition
| Under Article II there si no pre-existing duty rule. A party does not have to provide additional consideration to modify a K. The party must show good faith, however. |
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Term
| If you have a credit card debt that is due and undisputed. If you settle for 2k when you owe 2,500 is your payment of 2k considered your consideration? Can Visa sue for thr 500? |
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Definition
| No, not consideration on your part. Visa can come after you for the rest. You owed the 2500... no real consideration given. |
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Term
| If you have another credit card and they say you owe 2500, but ou dispute it... if you pay 2k just to be done with it.... have you given coonsideration? |
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Definition
| Yes. Here there is consideration when the 2k is given because the amount was in dispute. |
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Term
| Is a written promise to pay a debt that is barred by S/L enforceable even w/o consideration? |
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Definition
| Yes both in NY and MBE. The written promise becomes the consideration. |
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Term
| When is promissry estoppel used? Check this card.... |
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Definition
| Promissory estoppel is used when there is a promise, but no consideration is given in return and there is forseeable/detrimental relaince on this promise: for example, charitable gift. Dpnor promises to give a gift to church... the church in anticipation of the promise of donation begins to build anew wing. The donor is estopped from revoking promise to donate. |
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Term
| LL promises T that he will renew his lease next month when it is supposed to teminate. T paints the aprtment and orders custom blinds. The following month the LL does not renew the lease. |
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Definition
| Ordinarily here there would be no K because there is no consideration or bargain it is just a promise to the T to do something, nothing in exchange. But because the promise was detrimentally relied upon, and its relaince was forseeable T may enforce the LL's promise on the grounds of promissory estoppel. |
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Term
| If the subject matter of a K is illegal, can there ever be a breach of K claim? |
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Definition
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Term
| If an assasin buys a ticket from a Southwest Airlines and the purpose of her trip is to kill the Tonkamaru Ambasador, can Southwest recover from the assain for breach of K if she decides not to pay for that ticket? |
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Definition
| Yes. Here, even though the purpose of the K was to further an illegal ctivity, SW, presumably is unaware of the assain's objectives. If it did n=know then that K would be unenforceable. |
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Term
| When will a court narrow or invalidate a covenant not to compete? |
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Definition
| A covenant not to compete will be narrowed or invalidated when either it scope, meaning geography of longevity is unreasonable. Here the court must balance freedom of K v. restraints on trade. |
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Term
| In NY, in determining whether restricitve covenant is enforceable the court will look to the necessity of the covenant not to compete. What is the main criteria to uphold such a covenant? |
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Definition
| Generally, in NY, covenants obvusly have to be resonble n scope, but also looking to whether the vcovenant is a necessity. For example, to place a covenant to not compete in a K with a busboy seems ridiculous: theri services are not unique. In contrast, to require in a K that your chef does not work in NYC for 90 days may be deemed more resonable because the chef's talents are considered unique in general, and even unique to that restaraunt. |
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Term
| Exculptory clauses can eliminate liability for __________ , but not for _____________ or _____________. |
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Definition
| negligence, but not for gross negligence or intnetional torts. |
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Term
| A builder Ks to remodel a home. In the K with the homeowners, it provides that builder will not e responsible for the negligence of its employees. Is this permissible? |
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Definition
| Yes. Partles may K away liability for negligence. HEre, however, the builder would be vicariously for any gross negligence or intentional torts committed by his employees. |
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Term
| To say K is unconscionble you must look for _____________ and _______________ at _________ . ___________________ later on is ______________ . |
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Definition
| oppressive terms and unfair surprise t teht time of the making of the K. Perceived harshness later on is irrelevant in terms of unconscionability. |
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Term
| What does it mean for a K to be substantively unconscionable? |
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Definition
| It means for the substance of the K to be oppressive. |
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Term
| What does it men for a K to be propcedurally unconscionable? |
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Definition
| It means for the K to be proceduarally oppressive: meaning there was fine print, legalese or unequal bargaining power. |
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Term
| What re some eamples of procedural unconscionability? |
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Definition
| fine print, legalese, unfair bargaining power. |
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Term
| What are the 10 defenses against formation of Ks? |
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Definition
1. Illegal
2. Unconscionable (P and S)
3. Misrepresentation
4. Incapacity
5. Lack of consideration
6. Nondisclosure
7. Public Policy
8. Duress
9. Ambiguity
10. Mutual Mistake |
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Term
| What three questions must I ask myself when a SOF defense is raised? (W.S.E) |
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Definition
1. Is a writing required?
2. Is the writing satisfactory?
3. If you don;t have a writing is ther ean exception?
Writing? satisfactory? Exception? |
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Term
| Does the transfer of an interest in real estate have to be in writing? |
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Definition
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Term
| Must easements be in writing? |
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Definition
| Yes, easments fall under the SOFs. |
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Term
| Homeowner alleges that a builder agreed to install a fence around the parameter of his land. Does this K have to be in writing? |
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Definition
| No. Not subject to the SOFs. |
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Term
| Does a one year lease subject to the SOFs? |
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Definition
| No. Leases one year or less do not have to be in writing. |
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Term
| Is a service agreement that cannot be fully performed within a year have to be evidenced by a writing? |
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Definition
| Yes. You have to look at what could have happened, not what would have happened. Therefore, if it is plausible tha tthe K could not be performed within a year it is subject to teh SOFs and must be in writing. |
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Term
| Do specific tasks in a K have to be evidenced by a writing because they are subject to the SOFs? |
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Definition
| No. A specific task like cutting down all the trees on my property could take more than one year, but also could be accomplished in one year if a crew of 20 guys were hired. Therefore it is not subject tot he SOFs. |
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Term
| What is Woody Wood Pecker Ks to chop down all the trees in my yard: there are 800 trees. Does this K have to be in writing? What if Woody Wood Pecker ook a year and a half to perform? |
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Definition
| The rule is that you do not consider what happened to decide whether a K can be fulfilled within one year when the task is specific. Even though WWP did not finish within the year it is posible tha the could have finished it in 2 mos with the appropriae help. Look at the time of the Ks making, not at the conduct or lack thereof. |
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Term
| Do lifetime Ks fall within the SOFs for purposes of the MBE? How about N.Y.? |
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Definition
| Under the MBE, lifetime Ks do ot have to be in writing. The person may die tomorrow. In NY, however, lifetime Ks must be in writing. |
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Term
| If I K to employ Angelina Jolie to be my nanny for three years, is this K subject to the SOF? |
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Definition
| Yes, because there is a specific time agreed to here that exceeds one year. There is clearly no way based on the agreed terms of the K tha tthis K can be performed within one year. |
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Term
| If I K to employ Eva Mendes to my housekeeper for one year beginning tomorrow, is that agreement subject to the SOFs? |
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Definition
| Yes. Even though the K can be fulfilled within a year to evade SOFs. Here the K begins to run on formation of the K not on the specified dates of employemnt. Therefore, from the time of the agreement, until the time her employment ends, it would be more than one year, thus subject to the SOFs. |
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Term
| I K with Justin Timberlake to sing at a party for Jen on Decemeber 2008. He Ks to sng for 3 hours at a price of $15,000. The date we agree is on May 2007. Must this K be in writing? |
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Definition
| Yes it is subject tot he SOFs because from the time of the making of the K until the date of performance is longer than one year. The fact that his performance will only take 3 hours is irrelevant. |
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Term
| Under Article 2 of the UCC, does a SOGs have to be in writing if it is $500 or more? |
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Definition
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Term
| Hillary Clinton agrees to purchase 500 posters of Monica Lewinsky, at $2 per poster, from a photo shop provided that they affix a red target on her face. Is this sale subject to the SOFs? |
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Definition
| Yes, under Article 2 of the UCC a SOGs that is $500 or more must be in wiritng. |
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Term
| Doe a lease of goods have to be in writing if they are for $500 or more? |
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Definition
| No. Under UCC Article 2A, a lease of goods has to be $1000 or more to be in writing. |
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Term
| Rent-A-Center argues that I orally agreed to rent a 60" flat screen tv, a apple lap top, 2 sofas, a dining set, and a Harley Davidson from them for one year. My lease payments were $975 per month. Is this agreement enforceable. |
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Definition
| This is a K for a lease of goods, which in NY is subject to Article 2A of the UCC. The UCC requires leased goods that exceed $1000 to be in writing. Here, the fact that the monthly payment is $975 does not evade the SOFs. The terms of the alleged agreement is that I will pay $975 for a period of a year, which exceeds $1000, and therefore must be in writing. |
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Term
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Definition
| It is a promise to answer the debt of another. |
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Term
| Is the following statement by Cole subject to the SOFs: Lance contracts with Joe for him to plant grass seed in his yard for $800. Cole chimes in, "If Lance does not pay you, I will." |
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Definition
| Cole's statement is subject to SOF because he is acting as a surety... his guarantee to pay on the loan will only be enforceable if it is in writing. |
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Term
| Painter approaches Lance regarding painting his house. no K is formed. Cole chimes in and says, "Paint Lance's house and we will pay you $900." Is Cole's agreement with the painter subject to the SOFs? |
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Definition
| No. Here Cole is not acting as a surety, but is making himself directly liable so you evaluate it as a regular K. |
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Term
| Is the statement by an estate represntative to use her own funds to pay estate taxes subject to the SOFs? |
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Definition
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Term
| Is the promise to mrry subject to the SOFs? |
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Definition
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Term
| Do post-nuptial and pre-nuptial agreements fall within the SOFs? |
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Definition
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Term
| Does an oral agreement to marry someone fall within the SOF? |
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Definition
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Term
| What are some special situations in NY that fall into the SOFs? |
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Definition
| 1. Assignment of an insurance policy, promise to pay a discharged debt, agreement to pay a finder's fee or broker's commission, except to an attorney, auctioneer or real estate agent. |
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Term
| When does a modification to a K have to be in writing as per the SOFs? |
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Definition
| A modification to a K is only subject to SOFs if the K as modified would be subject to the SOFs irrespective of the whether the K was subject to the SOFs initially. |
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Term
| Does Article 2, governing the SOGs, allow for prvate parties to contractually create a writing requirement even when the SOF does not apply? |
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Definition
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Term
| Under CL, can oral modificaitons to a K be prhibited? |
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Definition
| No. ORal modifications are permissible. |
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Term
| Under Article 2 what writing will suffice when a sale is subject to SOFs ($500 or more)? |
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Definition
| The writing must contain a quantity term and signed by the D. No stated price is required. |
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Term
| What is requred in a writing subject to SOFs when there is a lease of goods? |
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Definition
| The wirting must indicate that it is a lease. It must also state the quantitiy of items being leased, the term, the rentl payment and be signed by the D. |
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Term
| What must be in writing to meet SOF when the writing does not deal with the sale of goods or the lease of goods? |
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Definition
| The writng must contain material terms (who & what) and be signed by the D. |
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Term
| Can a writing that is not signed by the D ever pass muster in terms of satisfying the SOFs? |
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Definition
| No. D' signature must always be on the writing in order for the writing to be used against him if a writing is required under the SOFs. |
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Term
| When dealing with real estate, the SOFs writing requirment may be excused when 2/3 requirements are met. What are they? |
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Definition
| 1. Some payment, 2. buyer makes permanent improvement to the land, and 3. buyer is in possession. If 2/3 of these requirements are met it is considered part performance, which in the context of real estate obviates the requiremnt for the agreement to be in writing as per the SOFs. |
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Term
| If Nicole works for Reed Smith for two years under an oral agreement that she will be paid $600,000 at the end of those two years, does this agreemnt have to be in writing, and if so is it barred by the SOF? |
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Definition
| Gnerally, service Ks need to be in writing if they speicify a time parameter that exceeds one year. In this case, however, the SOFs will not bar Nicole's COA because she has lready completed the work as agreed. She obviously will still have the burden to show that an oral agreement existed. Here full performace eliminates the need for a writing. |
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Term
| If a writing is required under the SOFs, but there is complete performance the need for a writing may be waived and the SOF will not bar the P from trying to proceed with COA, wha tif there is partial performance? |
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Definition
| Partial perfomance is not enough to obviate the need for a writing. |
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Term
| If someone made an oral agreement to work for a company for 2 years and then is fired after only two months, how can the employee recover? |
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Definition
| This K should have been in writing as per the SOFs therefore it is barred in law for recovery. In equity, however, P may be able to recovery under quasi K for the benefit conferred to the employer fro the two months of work. |
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Term
| If a K for the SOGs is subject to a SOFs, but it partially performed, can seller recover for goods accepted? |
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Definition
| No. Buyer must pay for them SOFs will not bar recovery. |
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Term
| When a good is custom made and cannot be sold to another buyer, can the SOF bar recovery? |
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Definition
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Term
| Wha tis a merchant's confirmatory memo? For a confirmatory memo to be effective in obviating the SOFs, what three elements must be satisfied? |
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Definition
It is a merchant's own writing that can be used against the other merchant when there is no writing, but should have been.
Three elemtns:
1. Both parties must be merchants
2. The writing must claim tha tthere was a prior oral agreement
3. The recipient does not object to the writing in writing within 10 days. |
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Term
| Why are confirmatory memos allowed to obviate the SOFs? |
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Definition
| Because merchants frequently agree to some transaction on the phone, and then one party generally floows-up the conversation with written memo. So the confirmatory memo allows, under Artice II of the UCC, to satisfy the SOFs requirement. |
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Term
| If a surety makes a proise that will benefit himself deos the promise have to be in writing? On the MBE? On NY? |
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Definition
| In NY a surety agreement must lways be in writing. On the MBE surety agreements generally do have to be in writing, but when the surety makes a promise with the main purpose being for his own benefit, then the promise is not subject to the SOFs and does not have to be in wiritng to be enforceable. |
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Term
| If a person enters a K on hbehalf of another person, and the underlying K falls within the SOFs, the third party is required to have written authorization. Wha tis this rule? |
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Definition
| This rule is the Equal Dignities Rule. Applies to agents. |
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Term
| Generally pseaking, what 5 contracts re within the SOFs, mening must be in writing? |
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Definition
1. Interests in real Estate
2. Service contracts that are greater than one year.
3. Sale of goods for $500 or more
4. Lease of Goods for $1000 or more
5. Suretyship |
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Term
| What type of law is the Equal Dignities rule? |
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Definition
| A rule property rule providing that n agent must have authority in writing to enter a K for a property tranaction that exceeds a year. |
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Term
| What is the Parole Evidence Rule? |
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Definition
| The Parole Evidence Rule says that we should keep out evidence of a prior oral or written agrrement that contradicts a later writing. |
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Term
| What is the policy behind the Parole Evidence Rule? |
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Definition
| We believe that writings later in time are more reliable. |
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Term
| When a party seels reformation of a K, what is that? |
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Definition
| reformation means to re-write a K. |
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Term
| If a hypo on the bar involves an oral agreement, which of he two do not apply, and why? SOFs or Parole Evdence Rule? |
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Definition
| The Parole Evidence Rule because it requires a writing. |
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Term
| What are the exceptions to the parole evidence rule? |
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Definition
1. To correct a clerical error
2. to establish a defense against formationof the K
3. To explain a vague or ambiguous term in the K.
4. To supplement a partially integrated writing: eaning the writing is incomplete on its face. |
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Term
| When a party seeks rescission from a K because of a misrepresntation may parole evidence be used? |
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Definition
| Yes. When a party seeks to get out of a K because of a misrepresentation statements made to the P may be introduced. |
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Term
| May a party introduce parole evidence to clarify a term ina K? |
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Definition
| Yes, ambiguous terms my be clarifed with parole evidence. this is limited, however, because couts generally give words their plain meaning. Thus, a party cannot say well, black really meant white in this K. |
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Term
| What is a merger clause and wha tis its effect? |
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Definition
| "This contract is limited to the terms herein." merger clause is evidence tha tthe K should not be supplemented by extrinsic evidence in terms of arguing that there are other terms that are not in the K that should be.... |
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Term
| Does the Parole Evidence Rule apply to agreed upon terms that occur after the writing is signed? |
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Definition
| No. the Parile Evidence Rule only apples to the terms in the written K. If there are additional terms agreed to after the signing of the K, thise terms may be proved with extrinsic evidence without violating the Parole Evidence Rule, because it simply does not apply to this situation. There maybe, however, issues regarding additional consideration or SOF problems if the modificationor additional agreed to terms are not in writing. |
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Term
| May conduct be used to fill in gaps in a K or to explain terms in a K? What conduct is used? |
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Definition
Yes.
The most importnt type of conduct to construe terms of an ambiguus or incomplete K is to look at the conduct of the parties to the K ths far. How have they behaved? This is known as the course of performance.
The Court may also look to the course of dealings. Meaning the court will look to conduct between the parties in Ks performed before this one.
Finally, the Court may look to usage of trade: what do others in the trade do under similar Ks. |
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Term
| seller is always liable to a purchaser for breach of K when the seller expressly warranties its goods. What are considered express warranties? |
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Definition
| Express warranties are statements of fact, promises and descriptions of the goods. |
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Term
| What are not considered express warranties in the context of the UCC Article 2 SOGs? |
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Definition
| Mere expressions of opinion, vague and subjective statements. |
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Term
| Which of the following are statements of an express warranty: This podium is mahogany, This computer is guaranteed for 2 yrs., All parts are top quality, seller's use of a model or sample. |
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Definition
| This podium is mahogany is a statmenet of fact therefore of a seller ere to say that to a buyer that would be considered an express warranty. The computer is guaranteed for 2 years. This is an express warranty because it is a promise made to buyer by a seller. If a seller were to say this mchine is made with all top quality parts this is NOT an express guarantee because the statement is too vague and also seems to be subject to opinion. When a seller uses a model or a sample for a consumer to look at it of try, that model is an express warranty because the cutomer reasonably believes tha the model is what he is getting. |
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Term
| What must be present fr an express warranty to be actionable in the context of the SOGs under UCC Article II? |
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Definition
| What must be present is the fact tha tthe express warranty was the basis of the bargain, meaning the seller used te warranty to induce the buyer to buy or the buyer reasonably relied on the express warranty in deciding to purchase the good. |
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Term
| What is an implied warranty of merchantability? when does a merchant make animplied warranty of merchantability? |
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Definition
1.It means that goods are fit for their ordinary purpose.
2. When that merchant deals specifically in that product, thus projecting to the community that he has a special knowledge about tha tparticular good. |
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Term
| When foot Locker sells me one of their vans that delivers shoes, is there an implied warranty of merchantability? |
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Definition
| No. If nothing is said about the van's quality no implied warranty of merchantibility may be assumed. Foot Locker is a merchant of sneakers, not vans. There is an implied warranty of merchantability when they sell their sneakers though. |
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Term
| What is an implied warranty for fitness for a particular use? |
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Definition
| The goods are fit for the buyer's particular purpose. |
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Term
| In problems dealing with an implied warranty of fitness for a special purpose, does a merchant have to deal in that particular good only? |
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Definition
| No. that requirement si only applicable for implied warranties of merchantabiliity. |
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Term
| In order for a seller to breach his implied warranty of fitness for a particular purpose, what must transpire? |
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Definition
| The buyer hs to have a special purpose in mind when buying the good, the buyer has to rely on the seller to select a suitable good, the seller knows both of these fats. |
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Term
| Does the UCC Article 2A, Lease of Goods provide the same implied warranty of merchntability as the SOGs, Article II? |
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Definition
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Term
| If I lease a computer from Citibank, which was purchased from Gateway, does an implied warranty of merchantability apply to this lease under UCC Article 2A? |
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Definition
| No. This is finance lease, which does not have an implied warranty of merchantability. Here, Citibank is not in the business of leasing computers. |
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Term
| Can a seller of leased goods and goods disclaim implied and express warranties? |
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Definition
| Sellers may only disclaim implied warranties, but not express ones. |
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Term
| What happens if a K says that all computers are guaranteed for two years, but later in the K the K disclaims all warranties? |
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Definition
| The express warranty survives. |
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Term
| When a seller makes no express warranties and sells the goods or lease "as is" or "with all faults," wha tis the seller doing? |
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Definition
| Disclaiming all implied warranties, which is permissible. |
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Term
| What are the two elements to disclaim implied warranties? |
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Definition
| There needs needs to express language that is conspicuous. There is no magic words. |
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Term
| A seller may limit a buyer's remedies for breach of any warranty, implied or express, if the limitation is not unconscionable. What type of limitation in a K for the sale of consumer goods is presumed unconscionable? |
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Definition
| a limit on buyer's remedy for personal injuries caused by the good. |
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Term
| When a seller ships goods to the buyer and the goods are destroyed, and the destruction was not caused by either the seller or buyer, who bears the risk of loss? |
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Definition
1. Look to K for terms regarding risk of loss.
2. If the K is silent re: the risk of loss, any tyoe of breach of the K, no matter how nominal, and no matter that the breach is not related to the loss, that party is responsible for the loss.
3. If neither of the parties breached, and the goods that are destroyed are sent via common carrier (UPS, FedEx, Freight Co.) the risk of loss shifts to the buyeronce the seller completes its shipping obligations. (distinguish: shipment K v. Destination K).
4. Non-carrier cases: buyer is to pick-up, seller is to deliver: If the seller is a merchant the seller bears the risk of loss of the goods until the buyer takes possession. If the seller is a non-merchant, theseller bears the risk of loss until the seller tenders the goods: meaning they are available to be picked up.
5. If the K gives the buyer the right to return the goods : who bears the risk of loss is based on why the buyer is purchasing this good: resale v. own use distinction. If the good is used for resale then it is subject to the above rules. If the buyer is purchasing the good for its ownuse. The risk of loss remains with the seller until the buyer has accepted the goods. |
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Term
| Wha tis the difference between a shipment K and a destination K in the context of who will bear the risk of loss to goods destroyed? |
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Definition
| A shipment K: seller must get the goods to the comon carrier, make reasonable delivery arrangements and notify the buyer. If it is a destination K: then the seller must get the goods to a particular destination before the risk of loss shifts to the buyer. |
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Term
| What is a "sale or return?" What is "sale on approval?" |
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Definition
| SOR: resale, SOA: own use |
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Term
| In the context of UCC Article 2A: Who bears the risk of loss? The lessor or lessee? |
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Definition
| The lessor always bears the risk of loss , excoet in a finance lease. |
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Term
| I lease a computer from Apple. A day after its delivery the computer is destroyed in a hurricane. Who bears the risk of loss? |
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Definition
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|
Term
| Wha tis the Perfect Tender Rule? |
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Definition
| the Perfect Tender Rule is applied under UCC Article 2 for the sale of goods. The Perfect Tender Rule requires that a seller must deliver perfect goods in the right place at the right time. If tender is not perfect, the buyer has the right to reject the goods. |
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Term
| I contract with Hanes T-shirs for the delivery of 30 white t-shirts, but they deliver 30 black t-shirts. What are my rights as the buyer? |
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Definition
| I may reject the delivery because there has not been a perfect tender, which is required under Article 2 of the UCC. |
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Term
| When does seller have the right to cure, and wha tis the right to cure? |
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Definition
| The right to cure is the right of a seller to remedy a tender of goods tha tis imperfect. The right to cure is generally only available to the seller until the exporation of the terms of the K: generally the delivery date. Therefore, if I deliver the wrong goods to ou on the 8th of July, but our K does not require me to deliver the goods until the 15th, I have until the 15th to cure the imperfect tender of goods. |
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Term
| May a seller cure an imperfect tender when the imperfect tender was generally accpeted in the past by the buyer in lieu of a discount when the delivery was on the K date? |
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Definition
| If the buyer rejects a imperfect tender that it usually accepts in exchange for a discount, the seller has a right to cure the defect even though the goods were supposed to be delivered on that date based on the k terms. |
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Term
| What are installment sale Ks? |
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Definition
| An installment K requires or authorizes a seller to deliver goods in installments. |
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Term
| How do you know if you have an installment K? |
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Definition
| You look to the K, not the conduct of the seller. Just b/c the seller decides to send the goods out in installments does not mean tha tthe buyer intended for that arrangement. |
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Term
| Does the Perfect Tender Rule apply to installment Ks? |
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Definition
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Term
| Because the Perfect Tender Rule does not apply to installment Ks, t is more difficult for buyers to reject goods. Under what circumstances may a buyer reject goods when a party to an installment K? |
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Definition
B has the right to reject an installment only if there is a substantial impairment in the installment that cannot be cured.
OR
B has the right to reject the entire K only if a defect in an installment substantially impairs the value of the whole K. |
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Term
| What is considered inplied acceptance of goods? |
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Definition
| Impled acceptance of goods occurs after the buyer keeps the goods without objection after having an opportunity to inspect the goods. |
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Term
| If a buyer pays for goods before receiving them, is that considered an implied acceptance? |
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Definition
| No. Before accpetance occurs the byer must have an opportunity to inspect the goods first. |
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Term
| If I purchsed goods over the internet, and I had the goods for over two months, is this implied accpetance? |
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Definition
| Yes. I received the goods, kept them without objection, and had an opportunity to inspect them. I cannot now say tha tI have not accepted them, would be unfair to sellers. |
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Term
| Once a buyer accepts goods they cannot reject them, but what hapens when the goods are non-conforming? |
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Definition
| The buyer may seek damages for the non-conformity. Remeber after acceptance buyers can never REJECT goods that are accepted. |
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Term
| When can a buyer revoke his accpetance of goods? |
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Definition
| A buyer may only revoke his accpetance when a good's non-conformity sibstantially degrades the value of the porduct AND the defect was latent: difficult to find. |
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Term
| Lance purchased a mobile home on May 4th and moved in on that day. It did not rain the whole month of May. On June 4th it rained and the mobile home leaked profusely. May Lance reject the mobile home? |
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Definition
| No. Lance maynot reject the mobile home because he accepted it. He can seelk dmages thought for the cracks in the rough that caused the leak. Even though Lance cannot reject the mobile home he can seek to revoke his accpetance of the K provided that he can show tha the cracks in the roof of the mobile home substantially degrade the value of the good and that the hairline cracks in the roof were a latent defect. |
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Term
| If a buyer rejects before acceptance or revkes his acceptance, what damages may he receive? |
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Definition
| He has the right to return the goods, get his money back and sue the seller for breach of K. |
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Term
| Under Article 2 of the UCC byer's may pay for goods by check. A seller has the right to demand cash under Article 2. What happens if buyer gives seller a check on the due date of the K, is this a breach? |
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Definition
| No. The buyer has a reasoble amount of time to get the seller cash (I think if it is expressly stated int he K, the buyer is ass-out. |
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Term
| Wha tis the rule regarding the performace of common law Ks? |
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Definition
| Under the CL perfection is ot required, substantial performace is good enough. There is no breach unless the breach is material, there is no substantial performance. |
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Term
| Under Article 2, if the seller breaches, meaning the tender is not perfect, what are the buyer's choices in terms of his performance? |
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Definition
| Buyer may reject ll the goods, accpet all the goods, or accept a part of the goods and reject the rest. The buyer in addition always hs a right to seek damages under a theory of breach of K. |
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Term
| Under CL when can the injured party refuse to perform? |
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Definition
| When there is material breach. Remeber for CL K, substantial performance will require that you perform. You cn still get damages from her though. |
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Term
| If there a material breach under a CL k, and the homeowner for example does not have to pay the agreed upon amount, can the breching party recover? |
|
Definition
| In equity via quasi-K. Do not want to unjustly enrich the other party. |
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Term
| distingush between these two Ks, the performance is the same. I k with a painter to paint my 10 cabannas. In one K paid per cabana, the other paid for painting all ten. Paints only three. Result? |
|
Definition
| Under CL, the K that provides a degignated price per cabana will result in a payment under the law for the 3 painted cabanas. The other K will be viewed as a material breach, not recovering under the law, but rather through an equitable remedy, quai K. Retain the reasonable value of the benfit conferred, which is not necessarily wha tthe K required in terms of compensation. |
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Term
| What is an anticipatory repudiation? |
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Definition
| It is when one party tells the other that he does not intend to perform. the anticipatory repudiation equates to a material breach. |
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Term
| May an anticipatory repudiation of a contractual obligation be retracted? |
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Definition
| Yes it may provided tha tthe other party has not relied on the anticipatory repudiation. |
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Term
| I contract with Ozzy Osbourne to clean my house in exchange for a valuable oil painting I own. As Ozzy beginds to scrub my toilet bowl he sees me sell the painitng is he still required to perform? |
|
Definition
| No, this would be conisidered an anticipatory repudiation. |
|
|
Term
|
Definition
| It is an agreement to cancel the contract. |
|
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Term
| Why must there be some performance left on the part of each party when the parties seek a rescission of their contract? |
|
Definition
| The remaining performance asks s consideration for the rescission. If one party has fully performed there is no consideration and thus cnnot be validly rescinded. Therefore, the other party will have to perform to not be liable for breach of K. |
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Term
| Ralph borrows $2000 from Jane. One week later Jane says to Ralph I will discharge your debt now if you promise to fix my toilet bowl. Ralpph promises. Ralph does not fix the toilet bowl. What are Jane's rights? |
|
Definition
| She may go to court for breach of K regarding the toilet bowl. She cannot, however, seek the 2000 debt she discharged. Her modification of the original K voided his debt, "now" being the operative word. |
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Term
|
Definition
| An accord is a an agreement to act in the future in satsfaction of a existing duty. |
|
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Term
| What are the key words that distinguish between a modifcation of a K and an accord? |
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Definition
| now indicates that the parties are modifying a K, whereas the word then indcates tha tthere is an accord. If you fix my hot tub then I will discharge your 2000 debt v. If you promise to fix my toilet now I will discharge your 2000 debt. |
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Term
|
Definition
| A novation is an agreement by the initial parties to replace one party with a new party. |
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Term
| X Ks to mow L's grass. X then asks J is she would like to mow L's grass and she agrees. X &J then ask L if he minds if J cuts his grass. Is this a novation? If so, what happens if J does not mow the grass? |
|
Definition
| This is a novation. If J does not mow L's grass then J will be in breach of K. L does not, however, have a claim for breach of K against X because there was a novation, which cuts off his liability. |
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Term
1. At common law what may excuse a seller from performing?
2. Under Article 2 what may excuse a seller from performing? |
|
Definition
A seller may be excused, at common law from performing if performance is impossible.
A seller, under the UCC, may be excused from selling if performance is impracticable. |
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Term
| Under Article 2, what is the result? Buyer buys 500 computers from seller. A fire destroys one of seller's warehouses with computers. Buyers computers were never designated. |
|
Definition
| If the computers were never designated then the seller is not off the hook. Here, in order for the seller to be excused from perfomace... the seller must sow that the seller roped off or designated 500 particular coputer's for buyer and that those computers were the ones that were to be sold to buyer. |
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Term
| Tom Ks with Jerry to sell him his 67' corvette for 26k. On 7/7 tom tenders the vette. On 7/8 a flash flood destroys the vet. Who has the risk of loss? |
|
Definition
| Kerry. Once tom tenders the car, meaning makes it available for Jerry to pick up, Jerry then bears the risk of loss because Tom is not a merchant. Therefore, Jerry is liable to pay Tom 26k even though the vette is destroyed. |
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Term
| Does death or incapacity always provide a legal excuse for non-performance? |
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Definition
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Term
| What if I contract with Van Gogh to paint my portrait. Subsequent to our k he becomes blind. Is he liable for breach of k if he cannot perform? What if he was hired to paint my shed? |
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Definition
| 1. He is not libale for breach of K if he is supposed to paint my portrait because his talent is unique and his talent is necessary to perform. In terms of the barn, other painters can paint the barn just as well no unique talent therefore, if he does not delegate his perfomace then he is in breach of K for non-performance. |
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Term
| If Van Gogh paints my portrait and I die the next day, can "I" still perform? |
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Definition
| Yes. My estate will be liable to Van gogh and my executor will pay him like all other creditors. |
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Term
| May a buyer not perform on a K if the purpose fo the K becomes frustrated and the seller is aware of the purpose, and the frustration is unforeseen at the time of the making of the K? |
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Definition
| Yes. For example, I rent your apartment for Thanksgiving weekend. I tell you I am renting it because I want a great view of the Macy's Parade. The Parade is subsequently canceled. I can back ot of the K because the purpose is frustrated. |
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Term
| I K with Moses to rent his store with the known intent of opening a coffee shop. Before I open the shop, Starbucks opens a location on the block, may I be excused from opening the shop? |
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Definition
| No. This is not considered a frustration of purpose, which would permit non-performace of a K. Lack of profitibility does not rise to thelevel. |
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Term
| Can an express condition in a K excuse performance? |
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Definition
| Yes. For example, I agree to buy your how as long as it is appraises for 600,000, it appraises for 595,000, I can refuse to buy it without breaching. |
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Term
| What are satisfaction clauses? |
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Definition
| A satisfaction clause in a K gives one party the right to perform only if they are satisfied with the other party's performance.... remember tha tthereis a reasonable standard here. Therefore, if the reaspnable person wold be satisfied then she is obligated to perfor.... unless, howver, the performance involves aesthetics or personal taste... then the standard s whether the actual party is satisfied with the performance. |
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Term
| In a breach of K action what type of damages re generally awarded? |
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Definition
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Term
| What type of remedy is specific performance, and wen is it applied? |
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Definition
| Specific performance is an equitable remedy tha tis generally sought when money will not suffice in compensating the injured party, but rather only the the thing itself will do. Generally, specific performance is only applied when the K deals with something unique such a s a piece of land, a home, an antique etc. |
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Term
| Under Article 2 of the UCC, when may a buyer seek specific performance for the SOGs? |
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Definition
| A buyer may seek specific performance for a good tha tis not readily available in the marketplace, itis a good tha tis unique. |
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Term
| Is specific perfomance permissible in service Ks? |
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Definition
| Generally, no. Can;t make someone work. |
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Term
| If A & B agree that B will teach a class on torts on Monday for bar rieveiw students, and B later breaches, and teaches for a competitior, what rememdy may A seek? |
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Definition
| A may seek an injunction barring B from teaching at competitior..... this is known as negative specific performance. |
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Term
| As a general rule a seller may not reclaim goods sent to a buyer unless the seller can show.... |
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Definition
| That the buyer was insolvent at the time of delivery and the seller demands the return of the goods within 10 days of the buyer receiving the goods. |
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Term
| What happens if a seller wants to reclaim goods and can do so properly, but buyer already sold to third party? |
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Definition
| Seller is ass out. the seller may never reclaim the goods from a BFPFV. |
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Term
| when may a seller reclaim goods at any time from buyer? |
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Definition
| When the buyer misrepresented its solvency to the seller in writing 3 mos before the transaction. |
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Term
| What is entrustment under Article 2 of the UCC? |
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Definition
| Entrustment is when an owner entrusts her property with a merchant who deals in the goods of that kind has o rights against a BFP. |
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Term
| When a merchant receives merchandise from an owner who entrusts the merchant with the property, and that merchant sells it to another what rights does the owner have to that property? |
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Definition
| No rights against the BFP, but may sue the merchant for conversion of her property. |
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Term
| Under Article 2, what is the right to request assurance? |
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Definition
| When a buyer reasonably believes tha the seller's performance may be lacking he may seelk a request for assurance, which provides adequate assurance, in writing, about the quality f the goods. |
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Term
| What happens if a buyer requests an assurance and the seller refuses to provide one? |
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Definition
| The buyer may consider the refusal to provide an assurance as an anticipatory repudiation of the K and the buyer does not have to perform. The seller, however, may retract the antcipatory repuditaion subsequently provided that the buyer has not relied on the anticipatory repusition by the seller. |
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Term
| If a seller agrees to allow buyer to purchase goods on credit, but later learns from other suppliers tht he is in default may the seller now require buyer to pay cash? |
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Definition
| No. Wha tth eseller may do however, is seek an asurance from the buyer that he will pay, which is in writing. |
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Term
| Are punitive damages available for breach of K? |
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Definition
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Term
| What is a key factor in determining whether a liquidated damages clause is valid? |
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Definition
| Whether it is graduated, such a s aper diem penalty. Saying, $2000 if the construction is not completed on time would not be a valid liquidated damages clause ppears to be more of a punishment because that would mean that the builder could finish 1 day later or 20 days late and still have to pay purchaser 2k. To say that for each day the house is not built past the due date there will be a 100 per day liquidated damage added is permissible. |
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Term
| I K with Michael Jackson to plant my garden for 6,000. He breaches the K. I subsequently k with another garderner and he agrees to do the same job for 6800. May I recover from Jackson? |
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Definition
| Yes, I may seek the benefit of my original bargain with MJ. I may seek $800 as my expectation costs... the difference between what I paid and wha tI expected to pay for planting flowers in my garden. |
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Term
| After graduation from law school I decided to become a carpenter. I estimated a job to be 6500 and the homeowner accepted. I was in the middle of the job and the he refused to pay me. Result |
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Definition
| I can recover the actual lost, which is all th e materials I purchased and then the profit, which was my expectation loss. |
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Term
| Mama Ellen goes to Carpets R Us to purchase a new rug. She picks out a rug that cost 2500. Later the seller learns he can sell it for 3k and refuses to deliver the rug. Mamma buys the same rug for 2900 form his competitor. |
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Definition
| Mama gets the difference between the K price and the price actually paid provided that she paid. She gets the benefit of her bargain: 400. The buyer may pay more than the K price provied that there is good faith. Mamma Ellen cannot go and buy a better carpet it must be comprable to the one purchased initially. If Mamma Ellen does not decide to buy carpet at all she can still recover the difference between the price she would have to pay now and the cover, meaning the substitute. |
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Term
| I contract with Habib to buy an antique area rug for 4,000, which if it were an antique would have been worth 7k. Later I find out the rug is worth only 2k, it is a fake, but decide to keep it. What damages can I get? |
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Definition
| I can recover my actual outlay, which is 2 k and the additional 3k because tha tis wha tI expected it to be worth. |
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Term
| I K with Izzy to sell my Firebird for $6,500. Izzy breaches. What happens if I sell it for 6,000 to Ruthie? What hppens if I sell it for 6,500 to Irving? |
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Definition
| If I seel it to Ruthie for 6000, I can sue Izzy for 500 to fulfill my expectation. If I sell it to Irving for 6500, I have no claim against Izzy because my expectations are met. Damages in K are not supposed to be punitive, but rather are intended to compensate the non-breaching K for actual and expectation losses. |
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Term
| What happens if I K to sell my car to Jane for 5000, and the market price is 4000. Janes breaches and decide not to sell in good faith, or cannot find another buyer what may I recover? |
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Definition
| I may recover the difference between the K price and the market prce: 1000. |
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Term
| In addition actual an dexpectation damages, what other type of damages may a seller or buy receive for a breach? |
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Definition
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Term
| What are incidental damages? |
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Definition
| They are damages incurred by a party that result because of the breach. |
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Term
| Do incidental damages need to be foreseeable for a party to recover? |
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Definition
| No ther eis no foreseeablerequirement for a party to recover. |
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Term
| What are consequential damages? |
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Definition
| Consequential damages have to be foreseeable. Therefore, if an injury may occur becaus eof non-performance and that injury is not foreseeable or is not expressed by the injured party then the breaching party will not be liable for consequential damages. |
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Term
| Bette Midler hires me to clean out her beachhouse, which she intends to rent out for 500 per month. I repudiate the K. Bette can't find a cleaner till who charges her 100 more than I would and loses her tenant. |
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Definition
| She can recover 100 in expectation costs because now she had to pay someone 300 to clean out her beachhouse instead of 200, which she bargianed for.... in addition, because I breached the K, and it was foreseable tha tmy breach would lead to her losing her tenant since the beachhouse would not be cleaned out and thus lost a month of rent. Therefore, she can sue me for 500 in consequential damages since the damges were forseeable. |
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Term
| What are avoidable damages? |
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Definition
| Avoidable damages deals with the rule of mitigation. Meaning that you cannot recover damages that could have been reasonably mitigated |
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Term
| What are the in rem remedies? |
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Definition
| specific performance, entrustment, right to reclaim, adequate assurance. |
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Term
| What is third-party beneficiary law? |
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Definition
| I tis when two people enter a K for the benefit of a third party, who if knows of the K can enforce its terms. |
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Term
| I purchase life insurance for Jen. When I die can she enforce the policy even if she is not a party to the insurance policy? |
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Definition
| Yes. This is a prome example of third=prty beneficiary law. She can enforce the policy if the insurance company does not pay her because I made a K with the life insurance company for the benfit of Jen. |
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Term
| If Arnold Schwartzeneger Ks with Vritney Spears to sing at his daughter's wedding, can Arnold's daughter enforce the K against Britney if she takes the money and runs? |
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Definition
| Yes, Arnold's daughter may recover directly from Britney because her father K'd with Britney for the benefit of his daughter. |
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Term
| In the cpntext of third-party beneficiary law, who is the promisor? Who is the promisee? |
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Definition
| The promisor is the person who promises to perform for the benefit of the third party. The promisse is the one who secures the promise from the promisor for the benefit of the the third party. Arnold is the promisee and Britney is the promisor. |
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Term
| In the context of third-party beneficiary law, what is the difference between an intended beneficiary and an incidental beneficiary? |
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Definition
| An intended beneficiary has the right to enforce a K, but an incidental beneficiary of the K does not have the right to enforce the K against the promisor. |
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Term
| Arnold Ks with Britney Spears for her to sing at his daughter's wedding. His daughter's maid of honor is an avid fan of Britney's. If Britney breaches can the maid of honor also recover damages for B's brech? |
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Definition
| No. Only Schwartz or his daughter can seek damages for B's breach. The daughter was the intended beneficiary, the maid of honor is only an incidental beneficiary, thus she does nothave standing to seek damages for the promisor's, Britney, breach. |
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Term
| In the context of third party beneficiary law, if a promisee's main purpose in entering the K with the promisor is to discharge a debt, then the thrid party is known as.... |
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Definition
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Term
| In the context of third party beneficiary law, if the main purpose of the promisee in entering a K with the promisor is for any other reason than discharging a debt, wha tis the third party considered? |
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Definition
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Term
| In the context of third party beneficiary law, when will a promisor and a promisee on behalf a third party not be able to modify or rescind the K? |
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Definition
| They cannot rescind or modify the K when the donne/creditor beneficiary learnns of the K and relies on it. |
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Term
| In the context of third party beneficiary law, if the promisor and promisee contractually agree that th beneficiary may be changed, can they change the beneficiary after the benficiary becomes aware of the K and relies on it? |
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Definition
| Even though the third party's rights ave vested, the contractual language controls and the beneficiry cannot seek damages for the modification of the K. I DON"T LIKE THIS ONE!!! |
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Term
| In the context of third party beneficiary law, if a donee beneficiary sues a promisor for breach of K, what defenses are available to that promisor? |
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Definition
| The promisor may invoke any defenses against the donne beneficiary tha tit could invoke against the promisee. |
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Term
| In the context of third party beneficiary law, if the promisee bereaches the K with promisor by not aying for example, can the donee beneficiary enforce the K or seek damages against the promisor? |
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Definition
| No. The promisee here could not recover against the promisor because the promisee breached, therefore the beneficiary may not recover either. |
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Term
| In the context of third party beneficiary law, which can sue the promisee, the donee benficiary or the creditor beneficiary? |
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Definition
| The creditor beneficiary. |
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Term
| May an obligor delegate its performance to another without objection from an obligee provided tha tthe K is performed as promised? |
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Definition
| A obligee cannot complain if an obligor delegates it contractual duties when the performance is as promised. |
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Term
| When may an obligor to a K not delegate his duties to another? |
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Definition
| When the K forbids delegation or assgnment to another party. Additioanlly, performance that requires special skills or reputation cannot be delegated. |
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Term
| If the obligor delegates its duty to another party under a K, is the obligor still responsible for the performace of the K, or does privity transfer between the person delegated to and the obligoee? |
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Definition
| The obligor is still responsible for performance therefore even thought the work was delegated the obligor is liable for breach of K if the work is not performed. The obligee will recover. |
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Term
| If an obligor delegates his duty to a third party and the third party receives consideration for his perfomace of the K, who may the obligee seek damages from? |
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Definition
| The obligee may sue the obligor because they are in privity of K. Obligee may also sue the person the obligor K'd with to perform because the obligee is now also a third party beneficairy who can enforce her rights once she becomes aware of the K and relies on the other person's performance of the work. |
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Term
| What does it mean to assign your rights? |
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Definition
| Two parties make a K, one party may asign his right under the K to another party. |
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Term
| The transfer of rights to a K transfers _______ _______. In contrast, a K that is transferred in its entirety to another party transfers the __________ and _________ under the K. |
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Definition
| rights only, rights and obligatons. |
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Term
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Definition
| An assignor is a person who transfers his rights under a K to another party. |
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Term
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Definition
| It is the person who the assignor assigns his rights under a K to... |
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Term
| Who is the obligor in the context of an assignment? |
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Definition
| The obligor is the party who will have to confer the rights of a K to the assignee. |
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Term
| Wha tis the difference between the third party beenficiary situation and the assignment of rights? |
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Definition
| In the third party beneficiary situation all three parties are involved from the inception of the K. In contrast, the assignee is later added to the relationship between the parties. |
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Term
| What are the requrements for making an effective assignment? |
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Definition
| No consideration is necessary all tha tis required is that the assignor makes a presnet promise. A promise to do something or to assign a right in the future is not effective. The assignor must assign a present right under the K. |
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Term
| If there is a K that says, right under this K are not assignable... what happens if the party assigns his rights... what are the consequences? |
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Definition
| Th eparty breaches the K, but the assignor's assignment is still valid as tot he assignee and the obligor must perform. |
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Term
| What if a K says all assignments uner the K are void? |
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Definition
| If the K sas this expressly then any assignment under the K would be void as to the assignee. This is different than a K that says this K is not assignable: this is just saying don;t do it. |
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Term
| When may an assignmet not be permissible? |
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Definition
| When the assignment of right under the K materially changes the dities of th eobligor. for example, if a party of the K wants to assign its right to payment to another tha twould not materially alter the obligor's performance. If, however, there is a service to be provided to an a party and that party then assigns its right to another that requires performance of a much different task, such assignment materially/substantially alters the obligor's duties, which renders the assignment unenforceable. |
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Term
| Are requirement K's assignable? |
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Definition
| Yes they ar eprovided tha tthe assignee's requirements are analogous to the requirmwnts of the assignor. |
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Term
| If an obligor is aware of n assignment and does not comply may the assignee sue for breach of K? May the obligor use the same defense it would use against the assignor? |
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Definition
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Term
| If there are multiple assignment made by an assignor, which assignee may claim the right to the assignment. |
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Definition
| Assignments made in consideration always trump donative or gratuitious assignments. If there are multiple assignments for consideration the assignment for consideration that was first in time ill prevail. If there are multiple gratutios assignent the last in time prevails because gifts are generally revocable. |
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Term
| In NY, wha ttyoe of gratutious assignment may be out later gratutitous assignments or assignments for consideration. |
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Definition
| Gratutitous assignments in writing. |
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Term
| When does a later in time assignee for consdieration prevail over earlier in time assigness for consideration? |
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Definition
| When later in time assignee for consideration is not aware of the prior assignment for consideration AND he recives (fors tot notify obligor) the rights under the K from the obligor first or seeks a judgment against the obligor first. |
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