K

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Author:
maggieblund
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163009
Filename:
K
Updated:
2012-07-18 18:18:09
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K
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  1. Governing Law
    K for services governed by CL contracts
  2. Valid K?
    Offer, acceptance, consideration, no defenses. 
  3. Offer?
    manifested willingness by offeror to enter into bargain with offeree. Terms must be certain and definite and offer needs to be reasonably understood to give offeree power to assent and conclude the bargain. Ad is only a solicitation of offer.
  4. Acceptance?
    Acceptance is offerees assent to invitation to enter into K. Effect creates binding K. Must be mirror image the offer exactly, or it is a rejection/counter offer. Acceptance can be by words or conduct. Person addressed/persons are only ones that can accept. 
  5. Consideration?
    Consideration is a bargained for exhange of something of legal value. 
  6. Statute of Frauds and service K's?
     
    If K can be performed within one year, then dont need to satisfy statute of frauds. Only if it COULD be. IF couldn't be completed within one year, need statute of frauds which includes a writing, signed by the party to be charged, and complete enough to establish material terms. 
  7. Modificatioon of K?
    modification of K replaces original obligations with the modified obligations. Requires all elements of a K, offer acceptance and consideration. Mutual modification of rights and obligations IS adequate consideration. Preexisting legal duty rule states that K to perfrom ones obligations under original K is not new consideration and WILL NOT support a modification. 
  8. Capacity to K?
    Need to be 18. If under, voidable k but must be disaffirmed by minor within reasonable time after getting to 18 and must restore party with all remaingin money and prop received by her through the K. Or becomes valid k. 
  9. K breach
    Breach is any non performance of a K duty when that performance is due. Non perofrmance includes both defective performance and lack of performance.
  10. Material Breach?
    Material breach occurs when substantial benefit of bargain not received by injured party. Can suspend own performance and or sure. 
  11. Minor breach?
    Injured party receives substantial benefit of the bargain, but defective performance. Injured party can sue for damages, but cannot suspend performance. 
  12. Terms of K?
    Intent of parties controls interp of K terms.
  13. BERG CONTEXT
    In WA, follow Berf rule for contact interp. EE is admissible as to the entire circumstances under which contract was made as an aid to get the parties intent. EE not admissible if it shows only the unilateral and subjective beliefs of one of the parties. 

    IF evidencfe of context of K says written K is complete, final, and unambiguous, then the PER applies.  
  14. PER
    PER provides that final written expression of parties agreement may not be contradicted by evidence of a prior written K or a prior/contemporanous oral K. 
  15. K void bc of illegality?
    WA cts will not enforce K that arises out of an ilelgal act. An illegal K is void. 
  16. Mutual Mistake
    K voidable by adversely affected party WHEN both parties make a mistake at the time of K as to basic assumption upon which K was made AND the mistake has a material effect on the agreed to exchange of performances. 
  17. Damages?
    Party injured entitled to recover amount of mula that would place in SAME POSITION would have been had K been performed (looking forward). This is called benefit of the bargain, or expectation interest. INCLUDES direct damages, foreseeable consequential damages, and incidental damages. 
  18. LIMITATION ON EXPECTATION DAMAGES: 
    Must be reasonably certain, at time K formed, foreseeable and unavoidable. 
  19. Restitution
    Alternate remedyt to damages for total breach of K. Purpose of restitution is prevention of unjust enrichment. Measure of recover is vlue of benefit conferred. 
  20. Marital community Liability
    CP statute tives equal pwoers of management and control over community prop to both spouses. basic presumption that debt incurred by either pssouse is community debt. Only necessary that debt incurred for community purpose. Community benefit need not actually be realized.
  21. Satisfaction Clause
    satisfaction clause often enforceable. Different from condition precedent, where other party doesnt have to perform until condition has been met. 
  22. Impossibility
    when required performance cant be done. Must be objectively impossible. Subjective inability to perform doesnt count. Must be caused by unforeseen event that was unavoidable by promisor and that could not have been guarded against in the K. 
  23. Impracticability
    discharge may occur when performance becomes impracticable due to extreme difficulty, expense, injury, or loss bc of unforeseeable eevent that was unavoidable. Must be unforeseeable, but subjective not objective test here. 
  24. Frusteration of Purposes
    when K can be performed but central purpose of K is undermined
  25. K repudiated
    when party to K expressly or impliedly repudiates the K at or prior to time of performance. When before performance due, anticipatory and may be retracted anytime before performance was due OR until time relied on then you can't. Discharges injured party's duties and gives rise to claim of damages for total breach.

    Can occur in a positive statement by promisor to promisee that they will commit a material breach OR a voluntary, affirmative act that renders the promisor unable or apparently unable to perofrm without material breach.  
  26. Agency Liability
    When authorize someone else to represent pricnipal in biz dealings with third parties, and agent consents to do so. If agent had authority, principal is liable to third parties. Whether aget an be held liable on K the agnet enters into depends on whether the principal was disclosed, undisclosed or partially disclosed. 
  27. Delegating Duties Under K
    Party can delegate unless has particular unique skill or talent, such as your singing ability. 
  28. Hadley v Baxendale
    Consequention damages are available only if they are foreseeable at the time of the K. 
  29. Defenses
    mutual mistake, misrep, fraud, unconscionability, duress, and ambiguous term
  30. Special, Foreseeable consequential damages
    Such as time being of the essence. Must be known to other party at time of K. 

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