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What are the requirements for a valid K?
- (1) offer
- (2) acceptance
- (3) consideration
- (4) legal capacity
- (5) legal objective
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What are the 2 requirements for an offer?
- (1) outward manifestation
- (2) power of acceptance
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What is the general rule regarding offers and auctions?
auctioneer is inviting offers and bids are the offers UNLESS auction is w/o reserve
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An offer can be revoked in what 4 ways?
- lapse of time
- death or incapacity of either party
- revocation by OFR
- rejection by OFE
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When is an OFR free to revoke an offer?
at any time for any reason prior to acceptance if effectively communicated
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What is the Functional Equivalents Rule?
If offer made by ad or other general notification then power of acceptance terminated when notice of revocation communicated in the same or equivalent manner and no better means of notification is reasonably available
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What are the 2 ways to prevent revocation of an offer?
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What are the 3 elements for an enforceable option K?
- offer
- subsidiary promise to keep offer open
- valid mechanism for securing enforcement
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What is required for an option K to be valid in NC?
express promise or agreement to remain open for specified period of time + consideration
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What are the requirements for a firm offer?
- b/t merchants
- signed writing
- expressly states by its terms that it will be held open
- doesn't require consideration
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What is an offer to enter a unilateral K seeking in return?
performance
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Under a unilateral K when does the OFR become bound?
- when OFE completes performance
- modern rule - once OFE begins performance, an option K is created and OFR may not revoke
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What is the OFR looking for in a bilateral K?
promise
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What are the 2 general requirements to constitute effective acceptance?
- mirror image rule - mirror the terms of the offer
- must be communicated to OFR
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What is the result of an acceptance containing any changes, additions, or subtractions from the terms in the offer?
constitutes a counteroffer thereby rejecting the offer and making a new one
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When can OFE silence constitute acceptance?
- (1) OFE takes benefit knowing OFR intention
- (2) OFE has given OFR reason to believe silence = acceptance
- (3) previous dealings or other circumstances reasonable that OFE should notify OFR if doesn't intend to accept
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Under the UCC additional terms become part of the K b/t merchants unless what?
- (1) offer expressly limits acceptance to the terms of the offer
- (2) OFR objects w/in reasonable time
- (3) materially alters the K
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How are additional and different terms treated in consumer X under the UCC?
as mere proposals for addition to the K
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How does the UCC treat different terms b/t merchants?
- majority - employs the knockout rule
- minority - mere proposals for alteration that OFR is free to accept or reject
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What are the different forms consideration can take?
- return promise to do something
- return promise to refrain from doing something
- actual doing of some act
- refraining from doing some act
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What are the 2 basic elements of consideration?
- (1) legal detriment
- (2) bargained-for exchange
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How does NC view a seal?
- substitute for consideration
- presumptive proof of consideration that can be rebutted by C&C
- not defense to claim of lack of consideration in equitable action
- UCC sales K - no effect, doesn't substitute for consideration
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What is meant by insufficient consideration?
promise not supported by consideration or legally insufficient
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What is failure of consideration?
- breach
- hasn't performed in accordance with his promise
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What is an illusory promise?
- promise to perform that leaves performance to the discretion of the promising party
- doesn't constitute consideration
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Does a condition on a gratuitous promise satisfy the consideration requirement?
no
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4 requirements for promissory estoppel?
- promise
- foreseeable reliance
- actual reliance
- injustice w/o enforcement
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What are the requirements for enforceability under SoF?
writing signed by the party against whom enforcement is sought
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What are the six categories of agreement governed by SoF
- marriage
- year performance
- land sale K
- executor
- guarantee
- sale of goods > $500
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What types of agreements does the NC SoF cover?
- sales of goods > $500
- leases in excess of 3 years
- transfers of real property
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What other types of agreements, other than those covered by NC SoF, require a writing to be enforceable?
- surety
- restrictions on employment
- reaffirmation of debt after SoL or bankruptcy
- commercial loan commitment > $50K
- payment of excessive interest rates
- securities
- SH voting trusts
- sale of business opportunity
- entertainment K
- guarantees from health care providers
- assignment of EE wages
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Writing isn't required in NC for what kinds of K?
- trust in land
- employing real estate brokers
- consideration of marriage
- can't be performed w/in 1 year
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What must be included in the writing to satisfy the SoF?
- identity of parties
- nature and subject matter of the K
- essential terms of the unperformed promises in the agreement
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What is the merchant's confirmation exception to the UCC SoF?
signed written confirmation sent by one party to the other will defeat a claim by receiving party as well as by the sending party unless certain conditions are met
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What are the exceptions to the UCC SoF?
- part performance
- merchant confirmation
- specially manufactured goods
- admission in court or other similar proceeding
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What are the PER exceptions?
- fraud
- mistake
- illegality
- duress
- partial integration
- conditions precedent
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What are the S obligations under the UCC in carrier and non-carrier cases?
- carrier - put the goods in the possession of a carrier and make appropriate arrangements for shipment to B
- non-carrier - obligation to tender delivery
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What is S obligation in a destination K?
tender goods at particular destination
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What are B obligations under UCC?
- B tender of payment condition to S duty to tender & complete delivery
- right to inspect goods
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When does RoL shift to B in carrier cases?
when S has delivered goods to carrier, made appropriate K for shipment, and seasonably notified B
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When does RoL shift to B in non-carrier cases?
- S/M - B takes possession
- S/nonM - S tenders the goods
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What is the preexisting duty rule?
POR can't provide consideration where that consideration is a duty the POR is already obligated to perform
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What is the effect of breach on RoL if S breaches by making NC tender?
remains on S until cure or acceptance
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What is the effect of breach on RoL if B rightfully revokes acceptance?
B may treat RoL as having been on the S from the beginning (deficiency of insurance coverage)
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What is the effect of breach on RoL if B breaches before the RoL passes to the B?
S may treat the RoL as resting on the B for a commercially reasonable time (deficiency of insurance coverage)
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Is consideration required to support a modification of K?
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What is the effect of a K modification in NC?
production of a new agreement which must contain all essential elements of a K
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What are the possible excuses to performance of K?
- mistake
- impossibility
- impracticability
- frustration of purpose
- mutual rescission
- accord and satisfaction
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What is a promissory condition?
performance conditioned on occurrence of the promised performance by the other party
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What is a pure condition?
K performance conditioned on occurence of events beyond control of either party
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Where a party's performance under the K is subject to an express condition, what does the failure of that condition do?
discharges the party's obligation to perform
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When will a conditioned be excused?
- waiver
- BF conduct by beneficiary of condition
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If there is a material breach, what does that do to the obligations and rights of the aggreived party?
- free to walk away from his own obligations
- sue the breaching party for damages
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What is the result if the party has rendered substantial performance of the condition regarding obligations/rights of aggreived party?
doesn't discharge performance obligations
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To what kind of K does the doctrine of substantial performance apply?
- K for services
- construction K
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What is the perfect tender rule under UCC?
every K term is treated as an express condition that must be enforced exactly...any deviation constitutes a breach
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What are the B options if S fails to make perfect tender under UCC?
- accept the goods
- reject the goods
- accept part and reject part
- must pay for what he accepts and seek damages for S imperfect tender
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What are the defenses to breach of K?
- incapacity
- misrepresentation
- public policy
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What are the remedies available for breach of K?
- expectation interest
- restitutionary interest
- specific performance
- negative injunctions
- liquidated damages
- mental anguish (NC)
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What are expectation damages?
put the aggrieved party where he would be if the other party had fully and properly performed the K
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What are reliance damages?
amount expended by party to perform the K
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What are restitutionary damages?
value of the benefits conferred on breaching party by aggrieved party during the course of conduct are recoverable
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What are negative injunctions?
orders prohibiting breaching party from taking particular action
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What are the considerations in NC for validity of CNC?
- reasonableness of geographic scope
- duration
- valuable consideration
- nec to protect legitimate interests
- doesn't interfere with public interest
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What is the 3 prong test for determining whether caluse in particular K is a valid liquidation clause?
- intention
- reasonable in relation to anticipated harm
- reasonable in relation to losses that actually occurred
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In NC, when can mental anguish be recovered in breach of K action?
- K not concerned with trade or commerce
- benefits not pecuniary
- related to dignity, mental concern, or solitude or sensibilities
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When do an intended beneficiaries right vest under the K?
- brings suit on the matter
- changes her position in justifiable reliance
- manifests assent at request of either party
- under express term of the K provide for such vesting
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When is a right not assignable?
would materially alter the risks to or obligations of the other party to the K
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What does NC require for novation?
- previous valid agreement
- agreement of all parties
- extinguishment of old K
- validity of new K
- - parties' intent governs
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What are the exceptions to general rule that all obligations can be delegated?
- performance is personal
- OR
- K prohibits it (fully enforceable)
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What is required to make an effective assignment?
- (1) manifest an intention to make a present transfer
- (2) w/o further action by owner or obligor
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Does a delegation relieve the delegator from his obligations under the K?
no
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What are the liabilities of delegatee?
liable to delegator and obligee for nonperformance
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What is an assignment>?
transfer of a right to receive a performance under a K
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What is a delegation?
3P agrees to satisfy a performance obligation owed by one of the parties to K
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