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Unilateral K results from an offer that expresley requires:
performance as the only possible method of acceptance.
A bilateral contract is usually the default K formation unless:
1. Reward, prize, contest
2. Offer expressly requires performance for acceptance
UCC Article 2 applies to Ks that are:
primarily for sales of goods.
If a K is not primarily for a sale of goods:
its is governed by common law.
A K, by definition is an agreement that:
is legally enforceable.
The test for whether a statement is an offer is whether a:
reasonable person in the position of the offeree would believe that his or her assent creates a K.
At common law the terms ____ and ____ are required for a sale of land.
Price and description.
Under the UCC Article 2 there is no ____ requirement.
Vague or ambiguous material terms:
are not an offer under either common law or UCC.
Requirements or output Ks are not:
vague or ambiguous and are valid.
In a requirements K, the buyer can increase requirements so long as the increase:
is in line with prior demands. No unreasonable disproportionate limitation on increases.
In general, an advertisement or price quotation is:
not an offer.
An advertisement can be a unilateral offer if it is in the nature of:
An advertisement can be an offer if it specifies quantity and:
expressly indicates who can accept. ($10, first come first served.)
A price quotation can be an offer if sent:
in response to an inquiry.
An offer cannot be accepted after the offeree:
terminates the offer.
An offer will terminate due to a lapse of time:
stated or what is reasonable.
The death or incapacity of either party after the offer, but before acceptance will:
terminate the offer.
An offeror may revoke an offer by her:
later unambiguous statement to offeree of unwillingness or inability to K. or
later unambiguous conduct indicating an unwillingness or inability to K that offeree is aware of.
An option cannot be revoked if the offeror has:
promised to not revoke AND this promise is supported by payment or other consideration.
UCC Firm Offer Rule:
An Offer cannot be revoked for up to three months if:
1. Offer to buy or sell goods.
2. Signed, written promise to keep the offer open, and
3. Party is a merchant (Merchant is Generally a person in business)
The K defense of Reliance can be established when:
There has been reliance on an offer that was:
1. Reasonably foreseeable and
In a construction K, a bid is:
an offer made by a subcontractor.
In a unilateral K, the start of performance pursuant to an offer to enter into a unilateral K makes that offer:
irrevocable for a reasonable time to complete performance.
Counter offers will generally terminate:
the original offer and create a new one.
Bargaining will not terminate:
At common law, conditional acceptance will:
terminate an offer, creating a new offer that can be accepted by conduct.
Under the UCC conditional acceptance is a rejection that can be:
accepted by conduct. New terms, however, are not part of the K.
Under the mirror Image rule, a response to an offer that adds new terms is:
treated like a counteroffer rather than an acceptance.
Under the UCC additional or different terms are not part of the contract unless:
both parties are merchants. Even if both parties are merchants the additional term is not a part of the K if the additional term is "material" or if the additional term is object to by original offeror.
In general, the start of performance is:
acceptance and is treated as an implied promise to perform so there is a bilateral K.
In unilateral Ks, the start of performance is not:
acceptance because completion of performance is required.
According to the mail box rule, all communications other than acceptances are effective when:
received. Acceptances are effective when mailed.
In a sale of goods, the sending of goods constitutes:
acceptance on the part of the seller.
An offer can only be excepted by a:
1. Person who knows about the offer at the time she accepts
2. Who is the person to whom it was made.
Offers cannot be assigned unless:
the offer is an option.
In MA, consideration constitutes:
bargained for legal benefit or detriment.
Some for of ______ is required for a K to be formed.
Generally, past consideration is not:
According to the pre-existing contract duty rule, doing what you are already legally obligated to do is:
not new consideration for a new promise to pay. However, if there is an addition or change in performance, a new agreement is formed.
Under Article 2, new consideration is not required to:
modify a sale of goods contract as long as it is in good faith.
Partial payment for the release of a debt is not:
valid consideration for the release.
A written promise to satisfy an obligation for which there is a legal defense is:
enforceable without consideration.
The elements of Promissory estoppel are:
2. Reliance that is reasonable, detrimental, and foreseeable, and
3. Enforcement necessary to avoid injustice.
In MA, seals are a:
Who lacks the capacity to contract?
1. infant - under 18
2. Mental incompetents who lack ability to understand the agreement
3. Intoxicated persons if other party has reason to know of intoxication.
A party who was incapacitated at formation of the K can be liable if:
the incompetent ratifies the K after becoming competent by retaining the benefits of the K.
Quasi-contract liability for necessaries:
A person who does not have capacity is legally obligated to pay for things that are necessary such as food, clothing, medical care or shelter, but that liability is based on quasi-contract law, not contract law.
The statute of frauds requirement may be met by either:
1. Proof of performance or
2. A writing signed by the defendant
The statute of Frauds defense is relevant where:
1. Promises to answer for the debts of another "if the other does not pay." Main purpose must not be for the party who is the surety.
2. Service K not capable of being performed with a year from the time of the K.
3. Transfer of Interest in real estate for interests less than one year
4. Sale of goods for $500 or more.
In MA you are within statute of fruads for a lease of goods if:
the total payments are $1000 or more.
Performance for the purpose of statute of frauds purposes can be satisfied in real estate transactions by:
any of the two (need all three in MA)
1. improvements to the land
Performance for the purpose of statute of frauds purposes can be satisfied in service contract transactions by:
Full performance by either party satisfies the Statute of Frauds.
Partial performance for service contracts does not satisfy:
the statute of frauds
Seller's partial performance for ordinary goods satisfies the Statute of Frauds but only for:
the extent of the partial performance in the case of delivered goods. If goods are undelivered, no satisfaction.
Seller's partial performance for custom goods satisfies the statute of frauds:
as soon as the seller makes a "substantial beginning." Seller must have done enough work that it is clear that what she is working on is specially manufactured.
In order for a writing to meet the statute of frauds requirement it must:
contain all material terms and be signed by the defendant.
In MA, a lease for goods must say:
1. It is a lease.
2. Describe the goods.
3. Describe the lease time.
Under article 2 a writing for goods must contain the ________ term.
Judicial admission as a statute of frauds defense:
If Defendant admits in a pleading or testimony that he had entered into an agreement with the plaintiff, the purpose of the SOF is satisfied.
Estoppel as a SOF defense:
Plaintiff's reliance on the Defendant's oral promise can estop the defendant from asserting a SOF defense.
An authorization for a person to execute a contract for someone else must be in writing when:
the contract to be signed is itself within the Statute of Frauds (equal dignity rule).
If a modification to an oral K may bring it within the statute of frauds:
the new deal must be proved within the statute of frauds.
Under the common law, K provisions requiring that all modification be in writing are:
Under the UCC, contract provisions requiring written modification are effective unless:
If the subject matter of an agreement is illegal:
the agreement is not enforceable.
If the subject matter of a deal is legal, the agreement is enforceable if:
the plaintiff did not have reason to know of the defendant's illegal purpose.
Misrepresentation is a defense to K if there is:
1. A statement of "fact before the K.
2. by one of the contracting parties or her agent
3. that is false
4. And induces the contract.
Nondisclosure is a K defense when the person making the contract:
owes a fiduciary-like relationship and conceals.
A K made under physical duress will:
not be enforceable.
Undue influence occurs when:
1. There is a special relationship between the parties and
2. Improper persuasion of the weaker by the stronger.
Whether a K is unconscionable will be determiend by a two part test:
1. unfair surprise and oppressive terms are
2. tested as of the time the agreement was made.
Ambiguity is a K defense when:
1. Parties use a material term that is open to a least two reasonable interpretations and
2. each party attaches different meaning to the term and
3. neither party knows or has rason to know the term is open to at least two reasonable interpretations
Mistake of Fact is a K defense when:
both parties are mistaken about existing facts and no party bears the risk of mistake.
Relief for a unilateral mistake of fact will occur only:
where the other party had reason to know of the mistake.
The General rule regarding parol evidence is that:
you cannot use parol evidence to change or contradict the K.
A court may consider parol evidence for a mistake in the:
integration of the K.
A court may consider parol evidence for the limited purpose of determining whether:
a defense to a K exists such as misrepresentation, fraud, or duress.
A court may consider parol evidence for the purposes of explaining:
a term in the written deal
The parol evidence rule prevents a court from considering evidence of earlier agreements as a source of consistent, additional terms unless the court finds:
1. that the written agreement was only a partial integration or
2. that the additional terms would ordinarily be in a separate agreement.
Conduct may also be a source of K terms. Courts look first to _______ of performance, second to course of __________, third to _____ and ______ to explain words in a K or to fill gaps in the K.
3. custom and usage
In a shipment K the seller completes its delivery obligation when it:
1. Gets the goods to the common carrier
2. Makes reasonable arrangements for delivery and
3. Notifies the buyer.
In a destination K the seller does not complete its delivery obligation until:
the goods arrive at the agreed upon destination.
FOB followed by a city where the seller is or where goods are is:
a shipment K.
FOB followed by a city other than where the goods or seller is located is:
a destination contract.
Risk of loss issues arise where after the K has been formed, but before the buyer receives the good:
1. the goods are damaged or destroyed and
2. Neither the buyer nor the seller is to blame.
If risk of loss is on the buyer:
he must pay the full K price for the lost or damaged goods.
if the risk of loss is on the seller:
there is no obligation on the buyer and possible liability on the seller for nondelivery.
For risk of loss disputes the agreement of the parties:
For risk of loss disputes, if there is no agreement, than the breaching party is:
liable for any uninsured loss even though breach is unrelated to the problem
For risk of loss disputes if there is no agreement and no breach, the risk of loss shifts from seller to buyer:
at the time the seller completes its delivery obligations.
For risk of loss disputes if there is no agreement, no breach, and no delivery by a carrier, the determining factor is whether the seller is:
Risk of loss shifts from a merchent-seller to the buyer on the buyer's:
receipt of the goods.
When the seller is a nonmerchant, the buyer bears the risk of loss when the seller:
tenders the goods.
Express warranties are words that:
promise, describe, or state facts.
The implied warranty of merchantability applies when any person buys goods from any merchant and guarantees that:
the goods are fit for the ordinary purpose for which such goods are use. Seller must deal in goods of the nature bought.
The implied warranty of fitness for a particular purpose attaches when the buyer:
relies on the seller to select suitable goods and the seller has reason to know of the purpose and reliance.
The statute of limitations on possible warranty actions is:
4 years and begins when the "tender of delivery" is made.
In MA, privity has been:
eliminated for recovery in cases of injury from breach of warranty.
Express warranties ________ be disclaimed while implied warranties of merchantability and fitness ________ be disclaimed by either _________ language or _______ _____.
4. "As is"
In MA sellers cannot disclaim the:
implied warranties of merchantability and fitness in consumer transactions.
A merchant's limitation of its warranties will be allowed as long as it is not:
unconscionable. Unconscionable presumption if breach of warranty on consumer goods causes personal injury.
In MA, courts closely scrutinize limitation or remedies especially in consumer transactions to:
make sure the the remedy does not fail of its essential purpose.
The perfect tender rule only applies to:
sales of goods.
Perfect tender does not mean that:
the seller's performance must be perfect.
A less than perfect tender by a seller give the buyer:
the option of rejection of the delivered goods, so long as the buyer acts in good faith.
The buyer's options after a less than perfect tender include:
1. retain and sue for damages or
2. reject all or any commercial unit and sue for damages.
If a buyer rejects goods he must take reasonable care of:
the rejected goods and should not continue to use the rejected goods.
A seller has an opportunity to cure a defective tender if:
the seller had reasonable ground to believe that the shipment would be acceptable, perhaps with a money allowance.
Generally a seller must cure a defective shipment:
before the original contract due date.
An installment K requires or authorizes the:
1. delivery of the goods in separate lots
2. to be separately accepted.
In an installment K the buyer has the right to reject an installment:
only when there is a substantial impairment in that installment that can't be cured.
If a buyer accepts goods he cannot;
later reject them.
Payment for goods without opportunity for inspection:
is not acceptance.
A buyer's failure to reject after the buyer had reasonable time to reject:
The Effect of the buyer's keeping goods is:
In order for a buyer to revoke acceptance there must be:
1. nonconformity that substantially impairs the value of the goods, and
2. excusable ignorance of the grounds for revocation or reasonable reliance on seller's assurance of satisfaction, and
3. revocation within a reasonable time after discovery of nonconformity.
The remedy for a breach of K for sale of real estate is:
specific performance unless land is later sold to a BFP.
contracts for the sale of unique goods may be enforced with:
When a contract is for services _______ _______ will never the ordered relief.
In order for an unpaid seller to get its goods back:
1. the buyer must have been insolvent at the time it received the goods, and
2. the seller demands return of the goods within 10 days of receipt and
3. the buyer still has goods at time of demand.
An owner who voluntarily entrusts property with another cannot retrieve the property if it is sold to:
The general rule for damages is the protection of:
expectation. K law looks to place the non-breaching party in the same position it would have been if there had been no breach.
Incidental damages added to expectation damages are the costs:
incurred in dealing with the breach. These do not have to be foreseeable.
Consequential damages arise from the plaintiff's:
Consequential damages are limited to situations which the defendant:
had reason to know of these plaintiff's special circumstances.
Avoidable damages cannot be recovered if:
the damages could have been without an undue burden on the plaintiff.
Liquidated damages will be upheld if:
1. damages were difficult to forecast at the time K was made and
2. the provision is a reasonable forecast.
Anticipatory repudiation is an early breach and consists of an:
unambiguous statement or conduct that
1. the repudiating party will not perform and
2. Made prior to the time that performance was due.
Anticipatory repudiation generally gives rise to an immediate:
claim for damages for breach unless the claimant has already finished her performance.
Anticipatory repudiation can be withdrawn so long as:
there has not been a material change in position by the other party.
If a repudiation is timely retracted, the duty to perform is reimposed but:
performance can be delayed until adequate assurance is provided.
A party may be excused from performance because of insecurity about the other party's performance when:
1. There are reasonable grounds for insecurity and
2. a written demand is given for adequate assurances and
3. it is commercially reasonable to stop performance
Only a ________ breach by one party will _____ the other party from performance.
Under the common law, a material breach occurs after one party performs less than _______ of his obligation.
Less than 1/2.
A party will still be required to perform even if the other party has performed less than 50% if the contract:
is divisible. (Paint 10 houses at $1000 per house)
An express condition is one which is:
1. In a K
2. Limits obligations created by other K language.
Conditional acceptance ______ to create a K, while an express condition is language _______ in a K that governs performance.
Generally, satisfaction of an express condition must be:
strictly complied with.
An express condition can be eliminated from K enforcement only by:
waiver of the condition by the party that benefits from it.
An accord and satisfaction occurs when the parties later agree to do something else:
instead of performing the original obligation.
If an accord is not performed, then the other party can recover on either:
the original obligation or the accord.
A modification is an agreement by parties to:
an existing obligation to accept a different agreement in satisfaction of the existing obligation. The non-breaching party cannot sue over the original obligation.
Modification v. accord and satisfaction:
Modification: both parties intended to excuse the old agreement
Accord and satisfaction: Opportunity to do something else to satisfy the original agreement. Uusally contain the words "IF" "Then"
A novation is an agreement between both parties to an existing K to:
the substitution of a new party.
A Novation excuses the contract for performance of the party who:
Delegation does not require the agreement of:
both parties and does not excuse non-performance by the delegating party.
Under the common law a party's duty to perform will be excuses by a later unanticipated event if the:
post-contract occurrence affected her ability to perform, not just the cost of her performance.
Generally death does not affect:
a party's K obligations.
Death will excuse performance if the party to the K is:
a special person (i.e. an actor playing in a certain movie role)
A law that makes performance of a K illegal is:
excused by impossibility.
A later law that makes the mutually understood purpose of contract illegal:
will be excused by frustration of purpose.
A third-party beneficiary is:
not a party to the K.
A promisor in a third party beneficiary hypo is the person who:
is making the promise that benefits the third party.
The promisee in a third party beneficiary hypo is one who:
obtains the promise that benefits the third party.
Only _____ beneficiaries have contract law rights. The ______ of the two parties to the K determine whether a party is intended or incidental.
Intended beneficiaries are either _______ or _______. To find out, look to see whether the third party beneficiary was a _________ of the promisee before the contract.
1. donee or creditor.
A third party's rights have vested and the K cannot be cancelled or modified without her consent unless the K otherwise provides when:
1. the third party knows of and has relied on or
2. assented as requested.
A third party can recover from a:
A third party beneficiary cannot recover from:
A promisee can recover from:
A creditor beneficiary can recover from a promisee but:
only on a pre-existing debt.
If the third party beneficiary sues the promisor, the promisor can assert any defense:
That could be asserted by the promisee.
An assignment is a transfer of:
rights under a K.
An assignor is party to the contract who:
later transfers rights under the K to another.
AN assignee is not a party to the K but:
able to enforce the K because of the assignment.
An obligor is the:
other party to a K besides the assignor.
Language that takes away the right to assign, but not the power to assign means that:
the assignor is liable for breach of K, but an assignee who does not know of the prohibition can still enforce the assignment.
Assignments of a K that take away the power to assign by K provision:
The common law bars an assignment that:
substantially changes the duties of the obligor.
Generally, consideration is not required for an_________ but gratuitous _______ may be revoked.
An assignee can recover from the:
An assignor for consideration cannot recover from:
The implied warranties of the assignor in an assignment for consideration are:
1. the right assigned actually exists
2. the right assigned is not subject to any then existing defenses by the obligor
3. the assignor will do nothing after the assignment to impair the value of the assignment.
When there are multiple gratuitous assignments:
the last assignee generally wins.
Generally for multiple assignment for consideration:
the first assignee for consideration wins.
A subsequent assignee takes priority over an earlier assignee for value only if he both:
1. does not know of the earlier assignment and
2. is the first to obtain payment, judgment, novation or idicia of ownership.
A delegation occurs when:
a party to a K transfers work under that K to a third party.
Assignment v. delegation
Assignment = rights
Delegation = work
Generally K duties are delegable unless:
1. K prohibits delegations or prohibits assignments or
2. personal services K that calls for very special skills
If the third-party delegatee does not perform:
1 Delegating party is still liable
2. Delegatee is liable only if she received consideration from the delegating party.