blaw final

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  1. Who does the burden of proof fall on
    person bringing claim
  2. what is a courts role in contract cases
    to interpret contract
  3. laches
    • a certain claim will only last so long
    • this means if you wait too long you might lose your right to make a claim
  4. contracts must be constructed as a:
  5. If there is a very clear contradiction, will court enforce the agreement?
  6. order court uses to help make decisions
    • handwriting>typed writing>printed material
    • written amounts>numerals
  7. Avoidance of hardship
    Judges sometimes make decisions to avoid harships
  8. Can a third party beneficiary enforce contract?
    only if the contract is intended to benefit the third party
  9. 2 kinds of 3rd party beneficiaries
    • Donee
    • Creditor
  10. what is an assignment
    • a transfer of rights and obligations 
    • i.e. Assignment of mortgage - mortgage loan
  11. Subrogation
    • in insurance, policy holder to insurance 
    • hand over rights to case in return for money for damages
  12. Contract rights that are not assignable
    • if it will materially alter the other party's burden
    • personal satisfaction contracts
    • personal services contracts 
    • credit rights
    • delegation of duty
  13. Defenses that are good against the assignor remain good against the
  14. Discharge by preformance
    • when parties complete their performance and contract is terminated
    • parties have no obligation to another anymore
  15. Tender of preformance
    • offer to preform (ready willing and able)
    • if you think other party is not going to do their part of the contract, you send this to them to show you are willing and able to do your part
  16. legal tender
    • lawful money
    • if you put in contract to be paid by cash you can deny checks
  17. are checks legal tender?
  18. Is an offer to work off a debt a legal tender
  19. If you put a check in the mail, does it count as paid
    Not until it reaches the creditor
  20. Most common mistake on loans to family/friends
    they do not specify date to be paid back
  21. "Time is of the essence"
    dates and deadlines of contract are meant to be strictly enforced
  22. Adequacy of performance
    Substantial, Good-faith performance is deemed enough
  23. Discharge by agreement
    • Anything that the parties in a contract wish to terminate within the contract, then can by signing a mutual release to terminate it
    • Can be used to terminate full contract too
  24. is being broke count as discharge by impossibility
  25. Contracts that death discharges
    personal service contracts
  26. does death discharge death?
  27. Example of temporary impossibility
  28. Discharge by obligation to law
    to certain legal offense, discharge of contract
  29. What court deals with bankruptcy
    Federal Court System
  30. Bankruptcy
    • Debts discharged
    • Does not effect secured credit
  31. Statue of Limitation
    • maximum time after an event that legal proceedings based on that event may be initiated
    • legal event that can end upending a contract
  32. Statue of Limitation in New York
    6 years
  33. If someone breeches contract with you, how long do you have to file negligence claim
    3 years
  34. Notice of claim
    In NY, 90 days from event to make claim against municipal law potential claim against government
  35. 3 primary breech of contracts
    • Money damages
    • Rescission
    • Specific performance
  36. Compensatory damages
    • damages to compensate victim 
    • in B/K cases
  37. B/K
    breech of contract
  38. punitive damages
    • damages used to punish violator
    • Not in B/K cases
  39. "Duty to mitigate damages"
    victim is required to keep damages to a minimum
  40. Rescission
    to put parties back to status quo
  41. Specific performance
    • rarely available
    • only available when you can convince the court the no money can make up damage
    • Requires the other party to so ahead with the agreement
  42. places where specific performance can be used on
    • real estate transaction
    • antics 
    • work of art
  43. are specific performance orders available for personal service contracts
  44. Reformation
    courts have authority to rewrite contracts if there has been a clear mistake
  45. Liquidated damages
    • effect on parties to agree in advance to determine price of damages
    • generally enforceable as long as it is not seen to punish breeching party
  46. Limitation of liability clause
    allows parties to reduce or eliminate consequential damages in case of breech of contract
  47. Commercial paper
    Negotiable instrument
  48. 2 kinds of commercial paper
    • Promissory note
    • ordinary check
  49. promissory note
    promise to pay back
  50. Payee
    person check is intended to
  51. Drawer
    person who issues check
  52. Drawee Bank
    Bank check is written to
  53. Negotiability
    legal transfer of commercial paper that a later part may get better rights down the road
  54. does reference to collateral affect negotiability
  55. A check is a:
  56. ordered paper
    only be claimed by payee or name ordered to get paid
  57. Barrer paper
    cashable to whoever has it if signed on the back or written in print
  58. Does blank endorsement make a check cashable?
  59. Blank Endorsement
    print name on back
  60. Restricted Endorsement
    only deposit
  61. Holder
    Person in physical possession of a check which at that time is payable to him as a payee or as barrer paper
  62. Joint Payee
    • (and)
    • both payee sign
  63. Alternate payee
    • (or)
    • one or other sign
  64. If there is ambiguity b/t joint or alternate, which is then assumed
  65. Is a forged endorsement an endorsement
  66. HTHDC
    Holder though holder in due course
  67. Federal Trade Commission rule
    HDC will not be allowed in consumers, credit transactions
  68. Drawers have ____ liability in ordinary check
    secondary liability
  69. drawee
    always bank
  70. Bad check laws- civil
    liability to pay the payee
  71. Bad check laws- criminal
    If money not paid within 10 days of bounced check could face criminal charges
  72. Post-dated check
    • when you write a check to be paid at a later check
    • Must notify bank to make this valid
  73. Certified check
    • starts off as an ordinary check
    • drawee back certifies it, assumes primary liability
  74. Stale Check
    6 months to cash it, after that, bank not liable to cash it
  75. How many days can a bank cash out a check after death of issuer
    10 days
  76. oral stop notice for check
    14 days
  77. legal stop notice for check
    6 months
  78. If a check is forged and cashed out by drawee back, who is liable
    drawee bank
  79. Dishonor of commercial paper
    when drawee bank denies payment
  80. If you get a unsolicited good in mail, can you keep it for free
  81. special endorsement
    "paid to the order of"
Card Set
blaw final
blaw final
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