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Two types of satisfaction clauses
1) Commercial value, operative fitness, mechanical utility (reasonable person- objective)
2) Fancy, taste, judgment (Good faith-subjective) |
Mattei |
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Andrewcm09 Tue, 18 Nov 2008 00:26:31 GMT |
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| If the place of delivery is left uncertain then operation of law determines (business, residence, some reasonable place) |
UCC §2-308 |
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Andrewcm09 Tue, 18 Nov 2008 00:26:31 GMT |
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Parties can conclude a K without stating the price and a reasonable price is attributed if:
1) Nothing is stated as to the price or
2) The price is left to be agreed by the parties and they fail to agree or
3) The price is to be fixed by the market or some other standard |
UCC §2-305(1) |
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Andrewcm09 Tue, 18 Nov 2008 00:26:31 GMT |
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| Missing terms can be added as long as there is a reasonable basis for filling in the terms |
UCC §2-204(3) |
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Andrewcm09 Tue, 18 Nov 2008 00:24:19 GMT |
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| The court will interpret the K as the parties intended at the time of K formation |
Moolenaar |
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Andrewcm09 Tue, 18 Nov 2008 00:24:19 GMT |
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| If a methodology for determining a term is present then the actual term does not need to be present |
Deli |
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Andrewcm09 Tue, 18 Nov 2008 00:24:19 GMT |
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| Agreeing to agree is not an agreement (enforceable) |
Deli |
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Andrewcm09 Tue, 18 Nov 2008 00:24:19 GMT |
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| New terms that do not add material obligations and should have been reasonably expected do not invalidate the K if added after O and A |
Crook |
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Andrewcm09 Tue, 18 Nov 2008 00:23:29 GMT |
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It is not necessary for a K to contain every possible contractual provision (Berg Agency)
The court can look to industry custom to fill gaps |
Saliba-Kringlen Corp |
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Andrewcm09 Tue, 18 Nov 2008 00:23:29 GMT |
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| The presence of a satisfaction clause does not make a K indefinite b/c a party cannot claim dissatisfaction in bad faith |
Academy Chicago Publishers |
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Andrewcm09 Tue, 18 Nov 2008 00:23:29 GMT |
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| A K is still certain even if some terms are left up to one of the parties |
RSC §34(1) |
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Andrewcm09 Tue, 18 Nov 2008 00:23:29 GMT |
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| A K can be enforced even though some terms may be left to be agreed upon unless there is not bases for the court to decide if the agreement has been kept or broken |
RSC §33 |
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Andrewcm09 Tue, 18 Nov 2008 00:22:39 GMT |
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| A K is reasonably definite if the court can ascertain what the parties have agreed to do |
Academy Chicago Publishers |
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Andrewcm09 Tue, 18 Nov 2008 00:22:39 GMT |
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| Courts will look to the context of the situation to determine intent of contracting parties and interpretation of terms |
Lawson |
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Andrewcm09 Tue, 18 Nov 2008 00:22:39 GMT |
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| Lady Duff Gordon rule for goods |
UCC §2-306(2) |
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Andrewcm09 Tue, 18 Nov 2008 00:22:39 GMT |
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| Party must make “reasonable effort” to fulfill terms of K |
Lady Duff Gordon |
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Andrewcm09 Tue, 18 Nov 2008 00:20:31 GMT |
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Requirements K
Can’t demand unreasonably high or low amount |
UCC §2-306(1) |
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Andrewcm09 Tue, 18 Nov 2008 00:19:59 GMT |
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| Promise enforceable even if no preexisting obligation if promisor receives material benefit |
Webb |
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Andrewcm09 Tue, 18 Nov 2008 00:19:59 GMT |
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| Promising to pay a debt incurred while a minor |
Webb |
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Andrewcm09 Tue, 18 Nov 2008 00:19:59 GMT |
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| Promising to pay a debt discharged by statute of limitations – this promise can be established by simply acknowledging existence of the debt, saying that you will waive SoL or giving any sum of money (b/c it resurrects the entire debt) |
Webb |
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Andrewcm09 Tue, 18 Nov 2008 00:19:59 GMT |
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a check for accord
1) Bona fide excuse
2) Check sent as good faith effort to settle dispute
3) Conspicuous statement that the check is for an accord |
UCC §3-311(b) |
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Andrewcm09 Tue, 18 Nov 2008 00:18:55 GMT |
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| No accord for undisputed pre-existing debt |
Foakes |
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Andrewcm09 Tue, 18 Nov 2008 00:18:55 GMT |
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A waived condition can be reinstated by the party who waived it if
There is notice of reinstatement within reasonable time to cause condition to occur or an extension is given
Reinstatement of condition is not unjust because of material change of position by the beneficiary |
RSC §84 |
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Andrewcm09 Tue, 18 Nov 2008 00:18:55 GMT |
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| Waiver must be explicit (basically the other party must know) |
Clark - publisher put in the K that he must abstain from alcohol. Clark argued that the condition was waived when he told them he had been drinking and they didn't care |
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Andrewcm09 Wed, 03 Dec 2008 01:25:54 GMT |
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| A condition cannot be waived if it is material to the K |
Clark - publisher, sobriety, waiver of condition, casebook |
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Andrewcm09 Wed, 03 Dec 2008 01:27:15 GMT |
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| Condition can only be waived by the party benefitting from the condition |
Clark - publisher, casebook, alcohol, sobriety, waiver of condition |
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Andrewcm09 Wed, 03 Dec 2008 01:38:13 GMT |
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| New C cannot be nominal in modification K |
Angel |
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Andrewcm09 Tue, 18 Nov 2008 00:16:47 GMT |
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Test to see if new K is enforceable without new C
1) The K is executory
2) Mod was not involuntary or agreed to under duress
3) Underlying circumstances relating modification are unanticipated
4) Fair and Equitable |
RSC §89 |
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Andrewcm09 Tue, 18 Nov 2008 00:16:47 GMT |
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| Modification of a K is a K |
Angel |
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Andrewcm09 Tue, 18 Nov 2008 00:15:05 GMT |
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| presence of a satisfaction clause does not negate consideration because party is still bound |
Mattei |
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Andrewcm09 Tue, 18 Nov 2008 00:15:05 GMT |
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| satisfaction clause is not consideration because by itself it is not consideration (no bargain) |
Mattei |
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Andrewcm09 Tue, 18 Nov 2008 00:15:04 GMT |
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| restricted right to terminate is consideration |
Gurfein |
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Andrewcm09 Tue, 18 Nov 2008 00:15:04 GMT |
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| unrestricted right to terminate = no consideration no K |
Gurfein |
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Andrewcm09 Tue, 18 Nov 2008 00:14:19 GMT |
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| A K of sale is mutual if there is an agreement to sell on one side and buy on another. If only one exists then it is not mutual |
Wickham |
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Andrewcm09 Tue, 18 Nov 2008 00:14:19 GMT |
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| A K cannot have C if it lacks mutuality |
Wickham |
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Andrewcm09 Tue, 18 Nov 2008 00:14:19 GMT |
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| A valid K may be conditioned upon the happening of an event, even though the event may depend upon the will of the party |
Scott |
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Andrewcm09 Tue, 18 Nov 2008 00:14:18 GMT |
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| Either both sides are bound or neither is bound |
Wickham |
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Andrewcm09 Tue, 18 Nov 2008 00:13:29 GMT |
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| Partial payment of preexisting debt is not enforceable because of preexisting duty |
Foakes |
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Andrewcm09 Tue, 18 Nov 2008 00:13:29 GMT |
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| Promise to perform pre-existing duty is not C |
Lingenfelder |
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Andrewcm09 Tue, 18 Nov 2008 00:13:29 GMT |
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| Performance of existing duty is not C |
Slattery |
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Andrewcm09 Tue, 18 Nov 2008 00:13:29 GMT |
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| Nominal consideration is consideration in an options contract |
Dickinson |
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Andrewcm09 Tue, 18 Nov 2008 00:12:37 GMT |
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| If a K gives a party choice of consideration it is valid if each choice is consideration |
RSC §77 |
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Andrewcm09 Tue, 18 Nov 2008 00:12:37 GMT |
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| False recital of C does not negate C |
Batsakis |
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Andrewcm09 Tue, 18 Nov 2008 00:12:37 GMT |
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| Foregoing non-frivolous litigation is C (settling) |
Schnell |
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Andrewcm09 Tue, 18 Nov 2008 00:12:37 GMT |
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| Foregoing frivolous litigation is not C |
Schnell |
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Andrewcm09 Tue, 18 Nov 2008 00:11:56 GMT |
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| Past C is not C |
Schnell |
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Andrewcm09 Tue, 18 Nov 2008 00:11:56 GMT |
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| Benefit not necessary for consideration |
Hamer |
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Andrewcm09 Tue, 18 Nov 2008 00:11:56 GMT |
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| Nominal C is not C |
Schnell |
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Andrewcm09 Wed, 03 Dec 2008 01:28:41 GMT |
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| C is based on legal detriment not benefit |
Hamer |
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Andrewcm09 Tue, 18 Nov 2008 00:11:15 GMT |
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| Non-C does not negate C |
Hamer - "don't do drugs" not consideration because no legal right to do it in the first place |
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Andrewcm09 Wed, 03 Dec 2008 01:18:01 GMT |
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| C is giving up a legal right/freedom |
Hamer |
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Andrewcm09 Tue, 18 Nov 2008 00:11:15 GMT |
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| Promise to give a gift is not enforceable |
Dougherty |
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Andrewcm09 Tue, 18 Nov 2008 00:11:15 GMT |
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