Breach of K

Frage	Antworten
What are the policies and purposes behind Breach of K?	It is a matter of empowerment.
Formation requires...	Mutual Assent + Consideration
Bilateral Contract	Promises on both sides, exchange of promises and commitments for future actions. (ambiguous K's are bilateral.)
Unilateral Contract	Unilateral contracts require complete performance to accept. The obligation is never simultaneous. You are seeking to induce an action, not a promise.
How is Mutual Assent analyzed?	Objectively
3 Reasons to use the objective test for mutual assent	1. Evidentiary interests 2. Reliance interests 3. Empowerment interests
Define a promise.	A manifestation of intent to act or refrain from acting in a specified way so made so as to justify a promisee in understanding that a commitment has been made.
When does the UCC apply?	1) goods that 2) are existing and identified at the time of contracting.
What does Predominant Thrust apply to?	Predominant Thrust is a test used K is a mix of goods and services to determine whether it falls under the UCC. (Coakley Factors are used.)
What are the three Coakley Factors?	1. Language 2. Nature of business 3. Intrinsic worth of materials 4. (added by Princess Cruise) Gravement's source
What is the UCC analysis when approaching a problem?	1. Does the UCC apply? 2. How does it apply? 3. To what part of the K? 4. What mode does it use?
What is ProCD?	This is the majority view of cases that states that an order is an invitation to offer. Delivery is the offer. Not returning is acceptance.
What are the three major types of electronic contracting?	1. Browsewrap 2. Clickwrap 3. Shrinkwrap
What is Boilerplate and it's problems?	Boilerplate is the template Ks that are so extensive and not customized to the situation. The problems are that people don't read them and this results in economic consequences.
What are the three way for mutual assent to occur?	1. Signature 2. Conduct 3. Offer and acceptance
What is the UCC standard for conduct?	Conduct that recognizes the existence of such a K.
What is Battle of the Forms?	The exchange of boilerplate forms, going back and forth, it is hard to determine what K is actually enforced and what terms within.
Define offer.	A manifestation of willingness to enter into a bargain so made so as to justify another person into thinking their assent is invited and will conclude the bargain.
True or False: Advertisements are usually considered offers.	False. Though "bait and switch" scenarios might be enforced by the courts power of equity.
What three elements does an offer have?	1. Definiteness 2. Directness 3. Finality
What is the courts method of analysis when looking for the offer?	Using an objective lens, the court looks to the communication between the parties, language, history, and contract type to determine the offer.
What is the UCC specific standards for offers?	Under the UCC, a price quotation is generally considered a solicitation for an offer. A purchase order is considered the offer.
Define acceptance.	A manifestation of assent to the terms of the offer made by the offeree in a manner invited by the offeror and on the same terms offered.
What are the three common law rules for offer?	1. Mailbox Rule 2. Mirror Image Rule 3. Last Shot Rule
What is the UCC specific acceptance standard?	Delivery is considered acceptance.
In what ways does the UCC combat CL for acceptance?	1. The Knockout Rule: if terms are inconsistent, they knock them out and add "filler" (default rules) 2. A qualified acceptance = an ordinary acceptance unless explicit in offer 3. Contracts do not need a starting point
What is the three steps of analysis for offer and acceptance?	1. ID offer 2. ID acceptance 3. Did the acceptance occur prior to the termination of the power to accept?
What four ways can the power to accept end?	1. Lapse of time 2. Death 3. Revocation by the offeror 4. Rejection of counter-offer by the offeree (Not always so under the UCC)
What two ways can revocation by the offeror occur?	1. Notice 2. By actions
What are the three grounds for irrevocability?	1. Unilateral contracts have a new rule where the offer cannot be rejected if there has been substantial performance. 2. Option contract 3. Firm Offer
What are the three elements of an Option Contract?	1. Offer 2. Plus promise not to revoke 3. Supported by consideration
What are the three elements for a Firm Offer?	1. Offer by merchant 2. In writing 3. Promise to keep open
What is the modern approach to consideration?	A return promise of performance that is "bargained for": 1) sought by promisor in exchange for original promise and 2) given by promisee in exchange for that original promise.
What was the classic method to consideration?	It required 1) a benefit to the promisor and 2) a detriment to the promisee.
What are the three policy theories for consideration?	1. Formality Theory 2. Historical Contingency Theory 3. Empowerment Theory
What are the three reasons for a formality doctrine?	1. Evidentiary 2. Cautionary 3. Channeling
What does interpretation and construction analysis ask?	What are the obligations that were created?
What is the difference between interpretation and construction?	Interpretation arises from the parties mutual assent. Construction arises as a matter of law.
What are the three tests for interpretation?	1. Objective test 2. Subjective test 3. Modified objective test
What is the reasonable expectations doctrine limited to?	Interpretation in insurance cases.
What four things do we look at for interpretation?	Language, context and trade usage, course of dealing, course of performance.
What is Parol Evidence?	Anything outside the 4 corners of the K.
What are the two types of integration?	Completely and partially.
What are the two different court approaches for determining the integration of a K?	Four Corners Jurisdiction and Contextual Jurisdiction
What is the rules for inadmissibility of parol evidence?	If it is completely integrated, PE is inadmissible to add to and supplement and to contradict. If it is partially integrated, PE is inadmissible to contradict. Under the UCC, it is only inadmissible when it completely negates.
What is the Kar test for breach of duty of good faith an fair dealings?	The HaHa test. (See Summer's Fruits of K-ing)
What is the historic view of warranties?	Caveat emptor--buyer beware.
List the four types of warranties.	1. Express 2. Implied warranty of merchantability 3. Implied warranty of fitness for particular purpose 4. Implied warranty of habitability/workmanlike construction
Define Express Warranty.	An affirmation of fact, or promise relating to goods, or description, sample, or model of goods that is made part of the basis for bargain. (Doesn't need to be a promise, but will not be puffery.)
Define Implied Warranty of Merchantability.	If the seller is a merchant of these goods. Goods must be merchantable meaning, they would 1) pass without objection in the trade and would be 2) fit for ordinary purposes.
Define Implied Warranty of fitness for Particular Purpose.	Seller has reason to know of buyer's particular purpose at the time of the contract and buyer is relying on seller's knowledge or skill to select suitable goods.
What are the two rules regarding implied duties?	Default rule: this is the norm. You can contract around a default rule. Mandatory rule: this is the standard. You cannot contract around it. It will always be implied.
Define Implied Warranty of Habitability/workmanlike Construction.	Seller is building a new home. The new home shall be habitable and constructed skillfully.
What is the rule for Performance and Breach?	A breach is a non-performance of a duty due, but a duty is not due if non-performance is justified.
What are the 6 justifications for Non-Performance?	1. Prior partial breach 2. Prior Material breach 3. Prior total breach 4. Anticipatory repudiation 5. Reasonable grounds for insecurity 6. Non-occurrence of express condition
What actions can you take when there has been a prior partial breach?	Can sue for expectation damages (ED) at the end or withhold the amount to cover ED. However, this does not justify non-performance.
What actions can be taken for prior material breach?	Can sue for ED or stop performance unless and until breach is cured.
What actions can be taken for a prior total breach?	Can sue for ED at end and stop performance unless/until cured or terminate contract altogether, seeking alternative/substitute K, and sue for ED immediately.
What actions can be taken when there is anticipatory repudiation?	Can treat as a prior total breach and sue for ED at end and stope performance unless/until cured; or terminate K altogether, seek alternative/substitute K, sue for ED immediately.
What must the reason to anticipate a breach be?	Something material and clear/definite and unequivocal.
What actions from a plaintiff will make a defendant's retraction of an anticipatory breach null?	1. Plaintiff relying on the repudiation detriment. This reliance must result in a material change. 2. Plaintiff notifies that it is taking threat of repudiation as final.
What actions can be taken when there is reasonable grounds for insecurity?	Can demand adequate assurance of performance. (Be careful not to demand too much. Also, you can't make a second demand.) and treat as anticipatory repudiation if adequate assurance to receive was not within a reasonable time OR stop performance until adequate assurance of performance is required.
What are the two types of condition?	Express and Implied.
When will an obligation still be present even though an express condition did not occur?	1. Defendant's waiver 2. Defendant's estoppel 3. Defendant's prevention 4. Forfeiture
What are the two types of defenses?	Procedural and Substantive
What are the 7 procedural defenses?	1. Minority 2. Mental Incapacity 3. Duress 4. Undue Influence 5. Misrepresentation 6. Non-Disclosure 7. Statute of Frauds
What are the two types of mental incapacity?	Cognitive: Whether the party knows what they are doing and the consequences of it. Volitional: The person is unable to act reasonably and the other party knows or has reason to know.
What are the four elements of Duress?	1) Any wrongful threat of one person by words or conduct that 2) induces another into a transaction 3) under influence that precludes free will 4) and the threat was intended or should have reasonably be expected to induce action.
Define undue influence.	Overcoming the will without convincing the judgment.
What are the seven factors that can point to undue influence?	1. Unusual or inappropriate time 2. Unusual place 3. Insistent demand for completion 4.Emphasis on consequence of delay 5. Use of multiple persuaders against 1 π 6. Absence of a third party adviser 7. No time to consult legal or financial agent
True or False: Undue influence is never innocent.	False.
Misrepresentation and non-disclosure can be brought under what two legal claims?	Tort and Contract
What are the 7 factors for a Misrepresentation Tort Fraud Claim?	1. Affirmative representation 2. Falsity 3. Material matter 4. Knowledge of the falsity 5. Intent to deceive 6. Reasonable reliance 7. Damages
Misrepresentations and non disclosure is usually a matter of FACT. However, what is the Opinion General Rule exception?	A recipient is justified in relying on opinion when: 1. There is a relationship of trust and confidence 2. There is reasonable belief that the person has special skill or judgment 3. A particularly susceptibility of the victim for some reaosn
What are the five factors for bringing a Misrepresentation Contract Claim?	1. Affirmative representation 2. Falsity 3. Material 4. Reasonable reliance 5. Entering of contract based on this reliance
In what four ways is a duty to disclose established?	1. Prevention of misrepresentation of a previous assertion. 2. Correct a mistaken assumption that is basis for K. 3. Clarify the contents of agreement. 4. Entitled to because of relationship of trust and confidence.
What are the seven requirements for bringing a Non-Disclosure Tort Fraud Claim?	1. Affirmative statement 2. Something true 3. Material matter 4. Knowledge of truth 5. Inent to deceive 6. Reasonable reliance 7. Damages
What are the six requirements for bringing a Non-Disclosure Contract Claim?	1. Affirmative statement 2. Something true 3. Material matter 4. Knowledge of truth 5. Reasonable reliance 6. Enters into the K as a result
What requirement and functions does the Statute of Frauds serve?	It is a formality requirement that serves the evidentiary, cautionary, and channeling functions.
What are the six types of contracts that fall under the Statute of Frauds?	1. Executor-administrator provision 2. Suretyship provision 3. Marriage provision 4. Land provision 5. One-year provision 6. UCC sale over $500
What are the three requirements for a suretyship provision?	1. It must be made to the creditor for who the debt was owed. 2. The original debtor cannot be discharged. 3. Cannot be done for one's own economic advantage.
How does a K meet the requirements for the Statute of Frauds?	1. Writing must show a) existence of K or offer and b) contain essential unperformed terms. 2. Signature must a) be signed by or on behalf of party charged. (Can be from different documents as long as they are related and acquiescence.)
What are the exceptions to the SOF?	1. Land exception 2. A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or third party is enforceable if injustice can be avoided only be enforcement of the promise. (Reliance + Evidence of K)
Under §139 for exception to the SOF, what five areas do you analyze to determine whether or not injustice can be avoided only by enforcement?	1. Availability of remedies 2. Character of action 3. Evidence of promise 4. Reasonability 5. foreseeability
What is the difference between promissory estoppel and the §139 Statute of Frauds exception?	Promissory estoppel is a claim for reliance damages. §139 is a defense saying the K is valid.
What are the relevant formality requirements for a UCC analysis of the Statute of Frauds?	1. Writing showing existence of K plus quantity 2. Signed by the parties or on behalf of them
What are the UCC exceptions to the Statute of Frauds?	1. Goods are to be specially manufactured for the buyer and are not suitable for sale to others. seller has either substantially begun manufacturing or committed. 2. The party admits they sought the K. 3. Payment has been made or goods have been received and accepted. 4. Merchant provision: SOF doesn't kick in until a reasonable amount of time has passed if the dealing is between merchants.
What is the substantive defense?	Public Policy (Illegality)
What is the rule for a Public Policy substantive defense?	Will not be enforceable on the grounds of public policy if legislation provides that it is unenforceable or the interests in its enforcement is clearly outweighed in the circumstances by public policy.
What three things do you look at for weighing the interest in enforcement for a Public Policy defense?	1. The parties justified expectations 2. Any forfeiture that would result if enforcement were denied 3. Any special public interest in the enforcement of the particular term.
Under the analysis for a public policy defense, when looking at the special public interests what four things do you look at?	1. The strength of that policy against enforcement of a term 2. Likelihood that a refusal to enforce the term will further that policy 3. The seriousness of misconduct involved and the extent to which it was deliberated 4. The directness of the connection between that misconduct and the term.
Under a public policy defense, what is the licensing requirements found in §188?	People only practicing fields with specific license. People that are licensed have continuing obligations and sets of requirements for the career contracts to be enforced.
What are the two elements of Unconscionability?	Procedural: The absence of meaningful choice. Substantive: Unfairness in the terms that is so "harsh" it shocks the moral conscious of the court.
What are the five types of remedies that can be sought?	1. Expectation damages 2. Reliance damages 3. Nominal damages 4. Punitive damages 5. Specific performance
What are the damages for a breach of contract?	Expectation damages with the exception of specific performance.
What is the last resort remedy for a breach of K?	Reliance damages. You always want expectation damages, but you can't always show.
Expectation damages =	loss in value + other loss - cost avoided - loss avoided
What are the four factors that must be weighed when determining other loss, cost avoided, and loss avoided?	1. Reasonably foreseeable 2. Causality 3. Duty to mitigate 4. Certainty
What is the rule for specific performance?	Specific performance is available when an item is unique or under special circumstances.
What is the unique circumstance that would require specific performance as a remedy?	Land cases.
What are the special circumstances that would require specific performance as a remedy?	1. Hard to calculate damages 2. non monetary values at state 3. third party interests
What are liquidated damages and how does the court treat them?	This is when parties agree in advance what the damages for a breach would be. This is actually limited, however. If you put in damages that seem punitive, the court wont enforce them. If you put in damages that are too small or too big, the court will say its unreasonable.

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