Study Contracts - Consideration, Terms, and Breach Flash Cards

 
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Contracts - Consideration, Terms, and Breach

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Condition can only be waived by the party benefitting from the condition
Clark - publisher, casebook, alcohol, sobriety, waiver of condition
Nominal C is not C
Schnell
A condition cannot be waived if it is material to the K
Clark - publisher, sobriety, waiver of condition, casebook
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
Non-C does not negate C
Hamer - "don't do drugs" not consideration because no legal right to do it in the first place
Two types of satisfaction clauses
1) Commercial value, operative fitness, mechanical utility (reasonable person- objective)
2) Fancy, taste, judgment (Good faith-subjective)
Mattei
If the place of delivery is left uncertain then operation of law determines (business, residence, some reasonable place)
UCC §2-308
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)
Missing terms can be added as long as there is a reasonable basis for filling in the terms
UCC §2-204(3)
The court will interpret the K as the parties intended at the time of K formation
Moolenaar
If a methodology for determining a term is present then the actual term does not need to be present
Deli
Agreeing to agree is not an agreement (enforceable)
Deli
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
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
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
A K is still certain even if some terms are left up to one of the parties
RSC §34(1)
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
A K is reasonably definite if the court can ascertain what the parties have agreed to do
Academy Chicago Publishers
Courts will look to the context of the situation to determine intent of contracting parties and interpretation of terms
Lawson
Lady Duff Gordon rule for goods
UCC §2-306(2)
Party must make “reasonable effort” to fulfill terms of K
Lady Duff Gordon
Requirements K
Can’t demand unreasonably high or low amount
UCC §2-306(1)
Promise enforceable even if no preexisting obligation if promisor receives material benefit
Webb
Promising to pay a debt incurred while a minor
Webb
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
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)
No accord for undisputed pre-existing debt
Foakes
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
New C cannot be nominal in modification K
Angel
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
Modification of a K is a K
Angel
presence of a satisfaction clause does not negate consideration because party is still bound
Mattei
satisfaction clause is not consideration because by itself it is not consideration (no bargain)
Mattei
restricted right to terminate is consideration
Gurfein
unrestricted right to terminate = no consideration no K
Gurfein
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
A K cannot have C if it lacks mutuality
Wickham
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
Either both sides are bound or neither is bound
Wickham
Partial payment of preexisting debt is not enforceable because of preexisting duty
Foakes
Promise to perform pre-existing duty is not C
Lingenfelder
Performance of existing duty is not C
Slattery
Nominal consideration is consideration in an options contract
Dickinson
If a K gives a party choice of consideration it is valid if each choice is consideration
RSC §77
False recital of C does not negate C
Batsakis
Foregoing non-frivolous litigation is C (settling)
Schnell
Foregoing frivolous litigation is not C
Schnell
Past C is not C
Schnell
Benefit not necessary for consideration
Hamer
C is based on legal detriment not benefit
Hamer
C is giving up a legal right/freedom
Hamer
Promise to give a gift is not enforceable
Dougherty
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