1
Q
Applicable Law: Common Law v. UCC
High
A
- Article 2 of the UCC governs all contracts for the sale of goods. Goods are defined as all things that are movable at the time of identification to the contract (other than the money), including crops and the unborn young of animals.
- The Common Law governs all other contracts (i.e. service or construction contracts).
- For mixed contracts, the predominant purpose of the contract determines which law governs. If the predominant purpose is the sale of goods, the UCC will apply. If the predominant purpose of the contract is for services, the common law will apply. In some states, when a contract divides payment between services and goods, the UCC is applied to the goods section and the common law is applied to the services section.
2
Q
Requirements to Form a Valid Contract
High
A
- A valid contract is formed when there is: (1) mutual assent (an offer and acceptance of that offer by the other party); (2) adequate consideration or a substitute; AND (3) no defenses to formation that would invalidate an otherwise valid contract entered into by the parties.
3
Q
Mutual Assent: Offer and Acceptance
High
A
- An offer is (1) a manifestation of present intent to contract by one party, (2) with definite and reasonably certain terms, (3) that is communicated to an identified offeree.
- Acceptance is a manifestation of assent to the terms of the offer, which indicates a commitment to be bound. Silence generally DOES NOT manifest acceptance, but performance may be adequate. For bilateral contracts, the start of performance manifests acceptance. For unilateral contracts, the start of performance only makes an offer
irrevocable, and the offer is accepted only when performance is complete.
4
Q
Termination/Revocation of Offer
Medium
A
- Offers can be terminated before acceptance by: (a) revocation by the offeror; (b) rejection or counter-offer by the offeree; (c) lapse of time – the time for acceptance expires after the time limit stated or a reasonable time (if no time limit was stated); (d) death or incapacity of either party; OR (e) supervening illegality – when the proposed contract becomes illegal after the offer is made.
- Most offers may be revoked at any time before acceptance through unambiguous words or conduct by the offeror to the offeree indicating an unwillingness or inability to contract. A revocation of an offer is effective when received. An offer can also be terminated when communicated indirectly – when (1) the offeror takes definite action inconsistent with an intention to enter into the proposed contract; AND (2) the offeree acquires reliable information to that effect.
- However, some offers are irrevocable including: (1) Option contracts (when consideration is given for a promise to keep an offer open); (2) a Merchant’s firm offer; (3) Offers that were relied on to the offeree’s detriment; AND (4) the start of performance on a unilateral contract, which makes the offer irrevocable for a reasonable time to complete performance (mere preparation is insufficient).
5
Q
Merchant’s Firm Offer
Low
A
- A Merchant’s Firm Offer is: (1) an offer to buy or sell goods; (2) by a merchant (a person who deals in goods of the kind); (3) in a signed writing; (4) which states that the offer will be held open and is not revocable during the time stated (or if no time is stated for a reasonable time), but not to exceed three months; AND (5) that the assurance to keep
the offer open must be separately signed by the offeror if the form is supplied by the offeree (such as initialing the specific paragraph). A merchant’s firm offer is enforceable without consideration.
6
Q
Advertisements
Medium
A
- Advertisements are generally NOT considered offers, but instead are deemed invitations for offers. However, an advertisement MAY be an offer if it includes sufficiently clear and definite terms so that the reasonable person would understand how performance or acceptance may be completed.
7
Q
Timing of Acceptance/Revocation & the Mailbox Rule
Medium
A
- Unless the offeror states otherwise, acceptance of an offer is
deemed accepted once the acceptance is sent or communicated (i.e. placed in the mail). However, revocation of an offer is deemed effective when received by the offeree. A communication is received when it comes into the possession of that person. An offer CANNOT be
accepted after it is revoked (unless there is an agreement to the contrary). However, once a valid contract has been created by acceptance of the offer, revocation is no longer possible. - Under the Mailbox Rule, if the offeror mails a letter to the offeree revoking the offer, but the offeree sends a letter to the offeror accepting the offer before receiving the revocation letter, a valid contract has been created. This is because the acceptance was effective before the revocation became effective. This rule DOES NOT apply to option contracts.
8
Q
Battle of the Forms (Mirror Image Rule & UCC Exception)
Medium
A
- The common law mirror image rule holds that an acceptance must exactly mirror the offer. Acceptance with any additional terms or variations constitutes a counteroffer, which revokes the initial offer.
- Under Article 2 of the UCC (which governs contracts for the sale of goods) the mirror image rule DOES NOT apply. The UCC states that acceptance does not have to mirror the offer and the acceptance may include different or additional terms, without revocation of the offer and thus constituting a valid contract.
- The offeree’s additional terms are deemed included in the contract ONLY IF: (1) both parties are merchants; (2) the term is not a material change; (3) the offer does not expressly limit acceptance to the exact terms of the offer; AND (4) no objection was made within a reasonable time. A material change is any change that is likely to cause hardship or surprise to the offeror (i.e. a disclaimer of warranties, an arbitration clause, payment of shipping/handling charges).
- The offeree’s different terms are subject to the knockout rule, through which different terms are knocked out of the contract and are gap-filled by UCC terms.
9
Q
Implied in Fact Contracts
Low
A
- Contracts may be created by the conduct of the parties, without spoken or written words. Conduct by both parties will create a contract if: (1) the conduct is intentional; AND (2) each party knows (or has reason to know) that the other party will interpret the conduct as an agreement to enter into a contract.
10
Q
Output and Requirement Contracts
Medium
A
- Output or requirement contracts are those in which the quantity is measured by the output of the seller or the requirements of the buyer. An output contract requires a seller to sell all of the output of the particular goods to the buyer, and a requirement contract requires the buyer to purchase all of the particular goods that the buyer requires from the seller.
11
Q
Consideration: Bargained for Exchange
High
A
- Contracts are NOT enforceable without consideration by BOTH parties. Consideration is a bargained for exchange of a promise for a return promise or performance that benefits the promisor or causes detriment to the promisee. For example, the money paid for goods is consideration for the seller, and the goods sold is consideration for the buyer. Generally, past or moral consideration is NOT sufficient
to support a contract.
12
Q
Consideration Substitutes: Promissory Estoppel/Detrimental Reliance
Medium
A
- Contracts that lack consideration may be enforced to avoid
injustice under the doctrine of promissory estoppel. Promissory estoppel applies when: (1) a party reasonably and foreseeably relied to his detriment on the promise of the other party; (2) the promisor should have reasonably expected a change in position in reliance of the promise; AND (3) enforcement of the promise is necessary to avoid
injustice.
13
Q
Defenses to Enforceability
Low
A
- A party MUST have capacity in order to enter into a contract. Contracts entered into by a person who DOES NOT have capacity are voidable by the person who lacked capacity. Minors (persons under 18 years old) and those
who lack mental capacity (persons who cannot understand the meaning and effect of the contract) generally lack capacity to enter into a contract. However, minors may be bound for contracts for necessities (i.e. food, shelter, clothing).
14
Q
Unconscionability
Medium
A
- Unconscionability occurs when a contract or term shocks the conscience of the court. Unconscionability usually occurs if the contract/term is BOTH substantively and procedurally unconscionable.
- Procedural unconscionability occurs when one party to the contract (usually the party who wrote the contract) has a superior bargaining position over the other party and uses that power to their advantage. An example is engaging in unfair pressure or bargaining practices to force the other party to enter into the contract.
- Substantive unconscionability occurs when the contract contains terms that are obviously unfair and one-sided in favor of the party with the superior bargaining power.
- If a contract or term is found unconscionable a court may: (a) refuse to enforce the contract; (b) enforce the contract without the unconscionable term; OR (c) limit the application of any unconscionable term.
15
Q
Mutual & Unilateral Mistake
High
A
- A contract is voidable (it may be rescinded or reformed) when there is a mutual mistake. Mutual mistake occurs when: (1) both parties are mistaken as to a basic assumption on which the contract is made; (2) the mistake is material to the contract; AND (3) the person asserting the mistake did not bear the risk of the mistake (by agreement or by a party treating their limited knowledge as sufficient).
- A unilateral mistake is (1) a mistake made by one party, (2)
that is unknown to the other party, (3) concerning a basic
assumption, (4) that has a material effect. A unilateral mistake is generally NOT a valid defense to formation of a contract. However, if one party knew or had reason to believe that the other party was mistaken OR the mistake would make enforcement of the contract unconscionable, the contract is voidable by the mistaken party. When the mistake involves price or value, the equitable remedy of rescission or reformation will NOT be allowed because price/value is
NOT considered material.
16
Q
Statute of Frauds: Contracts Requiring a Signed Writing
High
A
- Under the Statute of Frauds, the following contracts are not valid UNLESS they are in a writing signed by the party to be charged: (1) Marriage contracts – a promise in consideration of marriage; (2) Suretyships (where a guarantor promises to take on the debt of another if that person fails to pay) unless the main purpose exception applies (the surety’s main purpose in making the promise was to benefit himself); (3) Contracts that Cannot be fully performed in 1 year from the date the contract is entered into (there must be no possible way the contract can be performed within 1 year); (4) Contracts for the **Sale of real property or creating an interest in real property **(e.g. easements over 1 year, leases over 1 year, mortgages, fixtures); (5) Promises to pay an estate’s debt from the personal funds of the Executor/Administrator; AND (6) Contracts for the Sale of goods for $500 or more (the writing must state the parties, quantity and nature of the goods, and be signed).
- In order to satisfy the Statute of Frauds, a writing MUST: (1) be signed by (or on behalf of) the party to be charged; (2) reasonably identify the subject matter of the contract; (3) indicate that a contract has been made by the parties; AND (4) **state the essential terms **with reasonable certainty. The statute of frauds DOES NOT require that an agreement be contained in one signed document; it may consist of several writings.
17
Q
Statute of Frauds: Exceptions when a Writing is Not Required
High
A
- Under the Common Law, a contract that violates the statute of frauds may still be enforceable in the following situations: (1) Full Performance; (2) Partial Performance in Land Contracts – partial performance is allowed in land sale contracts if a party has done at least two of the following: (i) made a payment for land; (2) took possession
of land; (iii) made valuable improvements to land); (3) Judicial Acknowledgement – the party admits to the agreement in pleadings or testimony; (4) Estoppel –reasonable and foreseeable detrimental reliance on a promise (only some jurisdictions allow the doctrine of estoppel to be used in order to circumvent the statute of frauds). - Under Article 2 of the UCC, four exceptions exist: (1) Merchant’s Confirmatory Memorandum – In a sale of goods contract between two merchants (two people dealing in goods of the kind), a writing that confirms an agreement is sufficient if it is signed by the party enforcing it (not the party whom it is enforced against), as long as the party against whom it is enforced did not promptly object within 10-days after receipt; (2) Goods Accepted or Paid For – A seller may enforce the contract price of any goods accepted or paid for by the buyer, but NOT the whole contract price if only a portion of the total quantity of goods to the contract are accepted; (3) Custom Made Goods – A seller may enforce the contract price for custom made goods, which are goods in which the seller has made a substantial start AND are not suitable for sale in the ordinary course of the seller’s business; (4) Judicial Acknowledgment – A sale of goods contract for $500 or more is enforceable without a writing when the party to be charged admits that there was a contract during a judicial proceeding (i.e. in a deposition or courtroom testimony).
18
Q
Modification of Contracts: Pre-Existing Duty Rule & Exceptions
High
A
- Under Common Law, contract modifications MUST be supported by consideration. When modifying an agreement, past performance or performance of a preexisting duty owed to a party is NOT treated as adequate consideration.
- However, several exceptions exist: (1) an addition or change in the performance or promise; (2)** unforeseen circumstances** – a fair and equitable modification due to unanticipated changed circumstances and the contract is NOT yet fully performed by either party (usually the unanticipated circumstances must be severe or far beyond what was foreseen); OR (3) a third-party promise – when the duty was owed to a third-person, not the promisor.
- Under the UCC, there is NO consideration requirement for
contract modifications made in good faith. However, modifications must be in writing if: (a) they fall within the Statute of Frauds; OR (b) the original contract states that modifications must be made in writing. Good faith means honesty in fact and the observance of reasonable commercial standards of fair dealing.
19
Q
Parol Evidence Rule
High
A
- Under the Parol Evidence Rule, a binding fully integrated agreement discharges prior agreements to the extent that it is inconsistent with them. As such, a party CANNOT introduce evidence of a prior or contemporaneous agreement (either oral or written) that contradicts a later writing or includes additional terms. A merger clause is evidence that the writing is complete on its face (fully integrated) and cannot be supplemented with additional consistent terms.
- However, there are** four exceptions** where a court will permit such evidence: (1) to correct a clerical error or typo; (2) to establish a defense against formation (that the contract wasn’t valid in the first instance); (3) to interpret vague or ambiguous terms, but courts will interpret words to represent their ordinary or plain meaning (the plain meaning rule); (4) to include a condition precedent; and (5) to establish whether writing is integrated and, if so, completely or partially The Parol Evidence Rule DOES NOT apply to subsequent agreements.
- A partially integrated agreement DOES NOT contain a complete statement of all the terms the parties agreed to. As such, proof of additional terms is allowed if the terms DO NOT contradict the writing. Under the UCC, ALL writings are presumed to be partial integrations, unless the writing is fullyintegrated.
20
Q
UCC Delivery & Risk of Loss
Low
A
- The terms of the parties’ agreement govern the Delivery of goods and Risk of Loss. If not agreed upon, then the UCC supplies default terms. Risk of Loss means which party is responsible (or must pay) for goods that are lost or damaged during delivery.
- If agreed upon, then the **contract terms **govern Risk of Loss among the parties.
- If a breach occurs, then the Risk of Loss typically remains with the breaching party, even if the loss or destruction of goods is unrelated to the breach. If the Seller breaches AND the Buyer rejects or revokes acceptance of the goods, then the Seller has the Risk of Loss until cure or acceptance. If the Buyer breaches (buyer repudiates or is in breach before Risk of Loss passed), then the Risk of Loss rests with the Buyer for a commercially reasonable time.
- For Shipments by a Common Carrier: When goods are transported by an independent shipping company (a.k.a. a “common carrier”), the Risk of Loss depends on whether it’s a Shipment or Destination Contract.
- Shipment Contract (e.g. “F.O.B. Seller”) – The Seller is required to arrange shipment and deliver goods to a suitable carrier at Seller’s location. The Risk of Loss passes to Buyer when the goods are delivered to the Carrier, which means that any loss or destruction of the goods while in transit is Buyer’s responsibility.
- Destination Contract (e.g. “F.O.B. Buyer”) – Seller is required to ensure the goods are safely delivered to Buyer’s location. The Risk of Loss passes to Buyer when the goods are delivered to Buyer, which means that Seller is responsible for any loss or destruction of the goods while in transit or before they arrive.
- A Shipment Contract is presumed if: (1) the contract does not specify whether it’s a shipment or destination contract; AND (2) the shipment of goods is to be made by an independent carrier.
- For Non-Common Carrier Shipments, the Risk of Loss
depends on whether the Seller is a Merchant. If it’s a Merchant Seller, then the Risk of Loss passes to Buyer upon receipt of the goods. If it’s a Non-Merchant Seller, then the Risk of Loss passes to Buyer upon tender of delivery (regardless of whether the buyer actually receives the goods at that time).
21
Q
Condition Precedent
High
A
- A condition precedent in a contract makes performance
conditional upon the completion of the condition. Usually,
a condition precedent is expressly stated in a contract. If a
condition fails, no obligation of performance arises, and thus no breach has occurred. - However, occurrence of a condition may be excused by the
later action or inaction of the person who is protected by the
condition. This occurs in 2 instances: (1) A Protected Party’s Failure to Cooperate or Make a Good Faith Effort – the protected party can lose protection of the condition if he does not make a good faith effort to satisfy the condition (this implied duty of good faith will be satisfied when reasonable steps to satisfy the condition are taken); and (2) Waiver – waiver occurs when a protected party voluntarily gives up the protection of the condition. The protected party can retract waiver for future conditions to the extent that the other party has not relied on the waiver.
22
Q
Frustration of Purpose
High
A
- The Frustration of Purpose Doctrine discharges performance
under a contract if the purpose of the contract no longer
exists. Performance is excused if: (1) a party’s principal purpose is substantially frustrated without his fault (the contract is virtually worthless to the party); (2) by an unforeseeable supervening event outside of the parties’ control (the event’s non-occurrence was a basic assumption of the contact); AND (3) both parties knew the purpose at the time of formation.
23
Q
Impossibility
High
A
- Performance is discharged when it is objectively impossible
to perform a contract because of: (1) death or physical
incapacity of the person necessary to effectuate the contract (if the person can easily be replaced, performance is NOT excused); (2) unanticipated destruction of the subject matter necessary to fulfill the contract; OR (3) a new law or regulation that was unanticipated makes performance extremely and unreasonably difficult or expensive. - Under Common Law, if the risk of loss is on the buyer, then destruction of the subject matter does NOT excuse performance.
- Under the UCC, performance is excused ONLY IF: the destroyed goods were special AND were destroyed before the risk of loss shifted to the buyer.
24
Q
Impracticability
High
A
- Performance is discharged as impractical when (1) an event
occurs after contract formation, (2) that is unanticipated
by both parties at contract formation (the event’s nonoccurrence was a basic assumption of the contact), (3) making performance extremely and unreasonably difficult
or expensive. This doctrine is interpreted narrowly by the courts. Generally, an increased cost to perform a contractual obligation is NOT sufficient to render the contract excused due to impracticability.
25
Waiver
| Medium
* A waiver is a** voluntary and intentional relinquishment** of a contract right by words or conduct. Performance is excused when it is waived. Conditions are waived when: (1) a **party indicates through words or conduct** that a condition does not need to be satisfied; AND (2) the **other party detrimentally relies** on that waiver.
26
Minor Breach (Substantial Performance Doctrine) vs. Material Breach
| High
* Under the Common Law, a **material breach will excuse the
non-breaching party’s performance**. A material breach occurs when a **party DOES NOT render substantial performance** (the party did not perform major parts of the contract).
* A **minor breach will NOT excuse performance**, and the nonbreaching party must still perform (though he may bring a separate action for damages resulting from the breach).
* To determine whether a breach is material, courts will consider: (1) the **extent of the benefit deprived** to the injured party (what was the extent of performance); (2) the **adequacy of compensation** for loss to the non-breaching party; (3) the **extent the breaching party will suffer forfeiture** (hardship); (4) the **likelihood that the breaching party will cure**; and (5) **absence of good faith** or fair dealing by the breaching party (was the breach intentional, negligent, or innocent).
27
Time is of the Essence
| Medium
* The **failure to perform by a specified date is generally NOT
deemed to be a material breach** of the contract. If the time for performance passes, and no party seeks enforcement, the clause may be considered waived. However, if the contract **contains an explicit “time of the essence” clause** which requires performance by a specific date, then the **failure to preform by said date is deemed a material breach**.
28
UCC Perfect Tender Rule and Exceptions
| High
* Under Article 2 of the UCC, a **seller must deliver conforming goods**. The smallest non-conformity is a breach and the buyer may reject all or a portion of the goods. However, **two exceptions** to this rule exist under the UCC: (1) if the **seller has the right to cure**; and (2) in the **Installment contract** context.
* A seller has a right to cure in 2 situations: (a) If the **time for performance has NOT yet expired**, the seller can cure within the contract time period remaining; OR (b) **The seller is allowed additional reasonable time to substitute tender if it had reasonable grounds that the goods would be accepted** (i.e. when the same type of non-conforming goods were accepted by the buyer in the past).
* Special rules apply when a seller provides non-conforming goods under an installment contract. Installment contracts may only be cancelled where an **installment is so defective that it substantially impairs the value of the entire contract**. Similarly, a buyer may reject an installment only if the nonconformity substantially impairs that installment and the time to cure has past.
* Under Article 2 of the UCC, a rejection of non-conforming goods **must be made within a reasonable time after their delivery or tender**.
29
UCC Acceptance of Goods & Revocation of Acceptance
| Medium
* Acceptance of goods occurs when the buyer: (a) after a **reasonable opportunity to inspec**t the goods, signifies to the seller that the **goods are conforming** or that he **will take/retain them despite the non-conformity**; (b) **fails to reject the goods after a reasonable opportunity** to inspect them; OR (c) **does any act inconsistent with the seller’s ownership of the goods**. Acceptance of a part of any commercial unit is acceptance of that entire unit.
* The buyer is **obligated to pay for the purchase once acceptance occurs** (unless a revocation of acceptance is allowed), but may still sue for breach of contract if the buyer notifies the seller of the breach within a reasonable time.
* After the acceptance of goods, a **buyer may later revoke that acceptance only if**: (1) the **nonconformity substantially impairs the value** of the goods; **AND** (2) either (a) the **defect was difficult to discover** (a latent defect), (b) **acceptance was reasonably induced by the seller’s assurances**, or (c) the buyer **accepted the goods on the reasonable assumption the defect would be cured**. Revocation of acceptance MUST occur within a reasonable time after the buyer discovers or should have discovered the nonconformity. The revocation is NOT effective until the buyer notifies the seller. In addition, the revocation of acceptance must occur before there is any substantial change in the goods, not caused by their own defects. If a buyer successfully revokes acceptance, he is entitled to return of the purchase price. A buyer who revokes acceptance has the same rights and duties with regard to the goods involved as if he had rejected them.
30
Anticipatory Repudiation & Adequate Assurances
| High
* Generally, a party must wait for the other party to breach before bringing an action to demand performance or for damages. However, a **non-breaching party may seek damages before the time of performance is due if there is an anticipatory repudiation** by the other party. An anticipatory repudiation **occurs when a party unequivocally communicates that he is unable or unwilling to perform**.
* A party that anticipatorily breaches a contract **may retract its repudiation** and restore the contract **UNLESS** the aggrieved party has: (a) **cancelled**; (b) **materially changed his position**; OR (c) **indicated that he considers the repudiation final**.
* In addition, a party with **reasonable grounds for being insecure** about the other party’s performance **may demand in writing adequate assurances from the other party that it will perform in accordance with the contract**. If a **party DOES NOT give adequate assurances within a reasonable time** after it is asked to do so, the **asking party may treat that as an anticipatory repudiation**. In sales of goods contracts, the time given to respond cannot exceed 30 days.
* When an anticipatory repudiation occurs, the non-breaching party may do any of the following: (a) **treat the contract as repudiated** and sue for damages; (b) **treat the contract as discharged**; (c) **wait until performance is due and sue when performance does not occur**; OR (d) **urge the party to perform**.
31
Implied Obligation of Good Faith and Fair Dealing
| Low
* **Every contract contains an implied obligation of good faith
and fair dealing**, which requires the parties to act honestly and fairly.
* Under the UCC, an implied duty of good faith and fair dealing is imposed upon each party’s performance to a contract. Good faith is defined in the UCC as **honesty in fact** AND the **observance of reasonable commercial standards of fair dealing**. In the case of a merchant, good faith extends even further to observance of reasonable commercial standards of fair dealing in the trade.
32
Express Warranty
| Low
* Under Article 2 of the UCC, a seller is liable for a breach of an express warranty she makes to a buyer. An express warranty is created when (1) a **seller makes an affirmation of fact, promise, or description, or provides a sample**, (2) which **relates to the goods**, and (3) **becomes part of the basis of the bargain**. A seller **need not intend to create an express warranty** **or directly use the words “warranty” or “guarantee” to create an express warranty**. An **OPINION does not create an express warranty** (i.e. a seller’s praise or assertion of the value of the goods). Once a buyer discovers the breach of a warranty, he may sue for breach of contract.
* Disclaimer: Generally, an **express warranty CANNOT be disclaimed by a seller**. Any disclaimer will be disregarded when the express warranty and the disclaimer CANNOT be reconciled. Additionally, a negation or limitation is inoperative to the extent that such construction is unreasonable.
33
Implied Warranty of Merchantability
| High
* Under Article 2 of the UCC, the Implied Warranty of Merchantability is implied in all sales of goods contracts, and requires that **all goods sold by a merchant (a person dealing in goods of the kind) MUST be fit for their ordinary purpose**. Once a buyer discovers the breach of a
warranty, he may sue for breach of contract.
* While it is **possible to disclaim** the implied warranty of merchantability, a merchant **must do so expressly with conspicuous language** (oral or written disclaimers under the UCC are permitted). **Language of “as is” or “with all faults” **or language that puts the buyer on notice **will be sufficient** for a disclaimer of the implied warranty of merchantability.
34
Implied Warranty of Fitness for a Particular Purpose
| Low
* Under the UCC, an implied warranty of fitness for a particular purpose is created when: (1) a **seller knows or has reason to know of the buyer’s particular purpose** for which the goods are required; AND (2) the **buyer relies on the seller’s skill or judgment to select** or furnish suitable goods. If the above elements are met, the goods MUST be fit for the particular purpose of the buyer, otherwise there is a breach of warranty.
* An implied warranty of fitness **may be disclaimed** or excluded: (a) by a **conspicuous writing** – it is written, displayed, or presented that a reasonable person against it would operate ought to have noticed it; (b) by **conspicuous “as is” type language** – through the use of language such as “as is”, “with all faults”, or other language that calls the
buyer’s attention to the exclusion of warranties; (c) through **waiver if certain fitness defects can be reasonably discovered** upon inspection by the buyer; OR (d) by **course of dealing, performance, or usage of trade**. Language is sufficient to disclaim a warranty for fitness if it states that “There are no warranties which extend beyond the description on the face hereof.”
* Conspicuous terms include: (i) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text; or (ii) language in larger type than the surrounding text, in contrasting type, font, or color to the surrounding text, or set off from
surrounding text by symbols or other marks that call attention to the language.
35
Third Party Beneficiaries & Enforcement of Rights
| Low
* Generally, a party who is not in privity of contract with another party cannot assert a claim for breach against that party. However, when the party asserting the claim is an **intended third-party beneficiary, the party has the same rights as those in privity of contract**, **and can assert a claim for breach.**
* An *intended third-party beneficiary* is not a party to the contract, but has rights under the contract because the **contracting parties contemplated that their respective performances were intended to benefit an identified third-party**.
* An *incidental beneficiary* is a person that j**ust happens to benefit from the contract**, but has NO legal rights because the **purpose of the contract was not intended to benefit them**.
* An intended third-party beneficiary **may enforce rights under a contract ONLY IF** **the rights have vested**. Rights vest when the third-party beneficiary: (a) **manifests assent to the promise** under the contract at the request of a contracting party; (b) **detrimentally relies on the contract**; OR (c) **brings suit to enforce the contract**. Once rights have vested, a contract CANNOT be changed or modified without the third-party’s consent. A claim may only be brought against the promisor (when the third-party is a creditor, a suit may also be brought against the promisee).
36
Delegable Duties
| Low
* All contract duties are **delegable UNLESS**: (a) the **contract
prohibits** delegations or assignments; (b) the **delegation is
against public policy**; (c) the **contract is for personal services
that calls for the exercise of personal skill or discretion**; OR
(d) the **delegation materially alters the expectancy of the
obligee** (the party to which the duty is owed). An assignment generally includes a delegation of the unperformed duties under a contract. Generally, the **obligor (the delegating/assigning party) remains liable for nonperformance of the contract, UNLESS all the parties agree otherwise** (known as a novation).
37
Assignment
| Medium
* Rights and benefits under a contract may be transferred to a third-party if: (1) the **assignor manifests his intent to transfer the rights**; AND (2) the **assignee assents to the assignment**.
* **Consideration is NOT required** for an assignment, **BUT if consideration is provided, the assignment becomes irrevocable**. Gratuitous assignments may subsequently be revoked (unless an exception applies).
* Limitations: An assignment is **valid UNLESS**: (a) it **materially alters what is expected** under the contract; (b) it is **prohibited by law or public policy**; OR (c) it is ** precluded by contract**. Materially altering what is expected under the contract occurs when the assignment: (a) materially changes the duty of the obligor; (b) materially increases the burden or risk imposed on the obligor; (c) materially impairs the obligor’s chance of obtaining return performance; OR (d) materially reduces the value of the return performance.
* *Exceptions when a Gratuitous Assignment is Irrevocable*: A gratuitous assignment is irrevocable in the following situations: (a) **Delivery of a Symbolic Document** – when a document is delivered to the assignee symbolizing the right assigned (e.g. stock shares, insurance policy); (b) **Detrimental Reliance** – when the assignee reasonably and foreseeably relies on the assignment to their detriment; (c) **By Obligor’s Performance** – if the obligor performs or pays the assignee, that right to performance/payment is irrevocable; OR (d) **Writing Delivered by Assignor** – when the assignor puts the assignment in writing and delivers said writing to assignee.
* Parties may attempt to **prevent assignments** in the original contract through either: (a) **Prohibitions**: Terms in a contract that prohibit the transfer of rights. ***If the rights are assigned, the assignor is liable for damages, BUT the assignment is still valid and enforceable by the assignee***; OR (b) **Invalidations**: Terms in a contract that void all assignments. ***If the rights are assigned in this case, the assignment is void***.
* Rights of Assignee and Assignor: An **assignee may sue the obligor for non-performance**. Any defense to enforcement that could be used against the assignor may also be used against the assignee. An **assignee may also sue the assignor for wrongful revocation of an assignment** or for breach of an implied warranty.
* Multiple Assignments: Where there are multiple gratuitous assignments, the **last assignee prevails (unless the assignment was irrevocable)**. Where there are **multiple assignments for consideration, the first assignment prevails ** UNLESS the later assignment: (1) has no notice of the earlier assignment; AND (2) is the first to obtain either (a) payment, (b) a judgment, (c) a new contract from the obligor by novation, or (d) some indicia of ownership.
38
Novation
| Low
* A novation occurs when (1) **all parties** to a contract, (2) **agree to discharge an original party** to the contract, and (3) **substitute a third-party** in the original party’s place.
39
Duress
| Low
* Duress is a **wrongful pressure exerted upon a person** in order to **coerce** that person into a contract that he or she ordinarily wouldn’t enter. They must have had **no reasonable means to prevent the threat**.
40
Undue Influence
| Low
* Undue influence is the **unfair persuasion** of a **vulnerable party** to assent to a contract. It can occur in a relationship in which one party is dominant and the other dependent.
41
Illusory Contract
| Low
* An illusory contract is **an attempt to contract that is not legally binding**, For example, “I will buy…if I decide to” is an illusory contract because it **does not offer an actual detriment**. If the contract says a party can cancel before a certain date, it is illusory until that date, but a binding contract after that date.
42
Merchant
| High
* A merchant is **one who regularly deals in goods of the kind sold** in the contract or who **holds themselves out as a merchant**.
43
Misrepresentation
| Medium
* Occurs when the **defendant makes a misrepresentation of material fact** for the **purpose of inducing the plaintiff to rely** on the misrepresentation to their detriment. The contract is voidable if the **other party reasonably/justifiably relied on the misrepresentation**.
44
Fraudulent Nondisclosure
| Low
* **Nondisclosure (or concealment) of a material fact** and a **duty to disclose**(e.g., fiduciary relationship, assertion later made untrue, obligation of good faith). The contract is voidable if the **other party reasonably/justifiably relied on the misrepresentation**.
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