Contracts (MBE)

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REJECTION: Words or conduct of the ________ rejecting the offer.: REJECTION: Words or conduct of the OFFEREE rejecting the offer.
REVOCATION: Words or conduct of the ________ terminating the offer.: REVOCATION: Words or conduct of the OFFEROR terminating the offer.
This substitutes a new party for an original party to the K. o Requires _______ of all parties. o Completely _______ the original party.: NOVATION: This substitutes a new party for an original party to the K.

o Requires ASSENT of all parties.

o Completely RELEASES the original party.
IMPRACTICABILITY: This is ________ and ________ difficulty that was ___________.: IMPRACTICABILITY: This is EXTREME and UNREASONABLE difficulty that was UNANTICIPATED.
BILATERAL K's require an exchange of ________.: BILATERAL K's require an exchange of PROMISES.
UNILATERAL K's require the exchange of an _____ for a PROMISE.: UNILATERAL K's require the exchange of an ACT for a PROMISE.
Person to whom a debt is owed by the promisee.: CREDITOR BENEFICIARY: Person to whom a debt is owed by the promisee.
_______ BENEFICIARY: Person the promisee intends to benefit gratuitously.: DONEE BENEFICIARY: Person the promisee intends to benefit gratuitously.
GOODS: All things ________ at the time they are __________ to the K.: GOODS: All things MOVABLE at the time they are IDENTIFIED to the K.
If the nonbreaching party does NOT receive the _________ benefit of the bargain, it is a __________ BREACH.: If the nonbreaching party does NOT receive the SUBSTANTIAL benefit of the bargain, it is a MATERIAL BREACH.
A _______ breach may allow the aggrieved party to recover damages, but she must STILL perform under the K.: A MINOR breach may allow the aggrieved party to recover damages, but she must STILL perform under the K.

NOTE: If breach is material, the aggrieved party need NOT perform!
CONDITION ___________: One that cuts off an already existing duty of performance.: CONDITION SUBSEQUENT: One that cuts off an already existing duty of performance.
CONCURRENT CONDITIONS: Those that are capable of occurring ________.: CONCURRENT CONDITIONS: Those that are capable of occurring TOGETHER.

Example: As where property is tendered in exchange for cash.
A condition that must occur BEFORE performance is due.: CONDITION PRECEDENT: A condition that must occur BEFORE performance is due.
EXPRESS CONDITIONS: Those expressed in the K. IMPLIED CONDITIONS: Those ________ from ________ of the parties' intentions.: EXPRESS CONDITIONS: Those expressed in the K.

IMPLIED CONDITIONS: Those INFERRED from EVIDENCE of the parties' intentions.
CONSTRUCTIVE CONDITIONS: Those that are read into a K by the ______ w/o regard to the parties' _________ in order to ensure parties receive what they bargained for.: CONSTRUCTIVE CONDITIONS: Those that are read into a K by the COURT w/o regard to the parties' INTENTIONS in order to ensure parties receive what they bargained for.
This is a K that authorizes or requires delivery in separate lots.: INSTALLMENT K: A K that authorizes or requires delivery in separate lots.
ACCORD: An agreement in which one party to a K agrees to accept __________ different from that _________ promised.: ACCORD: An agreement in which one party to a K agrees to accept PERFORMANCE different from that ORIGINALLY promised.
_________ is performance of an accord. This discharges BOTH the accord and the original ______.: SATISFACTION is performance of an accord.

This discharges BOTH the accord and the original DEBT.
Seller agrees to sell all he produces of a stated item, for a stated period of time, to the buyer.: OUTPUT K: Seller agrees to sell all he produces of a stated item, for a stated period of time, to the buyer.
_________ RULE: This makes an ACCEPTANCE effective upon DISPATCH. HOWEVER, it does NOT apply where the ______ states that acceptance is effective only upon ________.: MAILBOX RULE: This makes an ACCEPTANCE effective upon DISPATCH.

HOWEVER, it does NOT apply where the OFFER states that acceptance is effective only upon RECEIPT.
If a period of _________ is stated in an offer, the offeree must _______ w/i that period to create a K.: If a period of ACCEPTANCE is stated in an offer, the offeree must ACCEPT w/i that period to create a K.
True or false? MINORITY at the time of contracting releases one from liability.: FALSE!

Mere MINORITY at the time of contracting would NOT release him from liability!

Instead, he must DISAFFIRM the K to avoid liability.
While a K entered into between a minor and an adult is generally voidable by the minor, he is STILL bound to pay the reasonable value of _________.: While a K entered into between a minor and an adult is generally voidable by the minor, he is STILL bound to pay the reasonable value of "NECESSARIES."
________ generally lack capacity to enter into a K binding on themselves. Therefore, they can plead incapacity and _______ most K's.: MINORS generally lack capacity to enter into a K binding on themselves.

Therefore, they can plead incapacity and DISAFFIRM most K's.
In the case of ___________ ___________, the nonrepudiating party has the option to treat the K as being breached and sue immediately.: In the case of ANTICIPATORY REPUDIATION, the nonrepudiating party has the option to treat the K as being breached and sue immediately.
ANTICIPATORY REPUDIATION For this doctrine to apply, there must be __________ duties on both sides of the K.: ANTICIPATORY REPUDIATION

For this doctrine to apply, there must be EXECUTORY duties on both sides of the K.
If BOTH sides do NOT have executory duties to perform, when can the NONREPUDIATOR sue?: If BOTH sides do NOT have executory duties to perform, the NONREPUDIATOR must wait to sue until the TIME ORIGINALLY SET FOR PERFORMANCE BY THE REPUDIATING PARTY.
ANTICIPATORY REPUDIATION serves to excuse conditions if: (1) There is a ________ K w/ _________ duties on both sides; and (2) The words or conduct of the promisor _____________ indicates that she cannot or will not perform.: ANTICIPATORY REPUDIATION serves to excuse conditions if:

(1) There is a BILATERAL K w/ EXECUTORY duties on both sides; and

(2) The words or conduct of the promisor UNEQUIVOCALLY indicates that she cannot or will not perform.
MISTAKE IN TRANSMISSION OF OFFER BY INTERMEDIARY In this case, the message as transmitted is operative UNLESS the other party _______________________________________________________.: MISTAKE IN TRANSMISSION OF OFFER BY INTERMEDIARY

In this case, the message as transmitted is operative UNLESS the other party KNEW OR SHOULD HAVE KNOWN OF THE MISTAKE.
In general, a K will NOT be avoided by __________ ____________. EXCEPTION: If the non-mistaken party is or had reason to be ________ of the mistake made by the other party.: In general, a K will NOT be avoided by UNILATERAL MISTAKE.

EXCEPTION: If the non-mistaken party is or had reason to be AWARE of the mistake made by the other party.
An action for SPECIFIC PERFORMANCE is subject to 3 equitable defenses: (1) ___________________ (2) ___________________ (3) ___________________: An action for SPECIFIC PERFORMANCE is subject to 3 equitable defenses:

(1) LACHES

(2) UNCLEAN HANDS

(3) SALE TO A BONA FIDE PURCHASER
In transactions BETWEEN MERCHANTS, additional terms proposed in the acceptance become part of the K UNLESS: (1) They __________ _________ the agreement; (2) The offer _________ limits ___________ to the terms of the offer; or: In transactions BETWEEN MERCHANTS, additional terms proposed in the acceptance become part of the K UNLESS:

(1) They MATERIALLY ALTER the agreement;

(2) The offer EXPRESSLY limits ACCEPTANCE to the terms of the offer; or

(3) The OFFEROR objects w/i a REASONABLE time.
UCC RULES--- In K's involving the sale of goods, an acceptance need NOT mirror the offer's terms. Thus, an acceptance that deviates from the offer is NOT necessarily a __________ and _____________.: UCC RULES---

In K's involving the sale of goods, an acceptance need NOT mirror the offer's terms.

Thus, an acceptance that deviates from the offer is NOT necessarily a REJECTION and COUNTEROFFER.
MERCHANT: One who ______ in goods of the kind sold or who has __________ __________ of the business practices involved.: MERCHANT: One who DEALS in goods of the kind sold or who has SPECIALIZED KNOWLEDGE of the business practices involved.
In this type of K, the party w/ the power of acceptance has paid for the offer's irrevocability. NOTE: It limits the offeror's power to revoke!: OPTION K: The party w/ the power of ACCEPTANCE has paid for the offer's IRREVOCABILITY.

NOTE: It limits the offeror's power to revoke!
A SIGNED WRITING by a MERCHANT promising to hold the offer open for some period of time.: FIRM OFFER: A SIGNED WRITING by a MERCHANT promising to hold the offer open for some period of time.

NOTE: This limits the offeror's power to revoke!
REVOCATION is effective when _____________ by the offeree.: REVOCATION is effective when RECEIVED by the offeree.
A counter-offer is BOTH a __________ and a new __________. It terminates the original offer and reverses the roles of the parties!: A counter-offer is BOTH a REJECTION and a new OFFER.

It terminates the original offer and reverses the roles of the parties!
An offer may be accepted SO LONG AS it has NOT been ___________. An OFFER may be terminated by: (1) An ______ of either party; or (2) By __________ of _____.: An offer may be accepted SO LONG AS it has NOT been TERMINATED.

An OFFER may be terminated by:

(1) An ACT of either party; or

(2) By OPERATION of LAW.
In K's for the sale of ______, the ________ must be certain or capable of being made certain.: In K's for the sale of GOODS, the QUANTITY must be certain or capable of being made certain.
It is important to distinguish between preliminary __________ (NOT offers) and __________ (offers).: It is important to distinguish between preliminary NEGOTIATIONS (NOT offers) and PROMISES (offers).
To be valid, an OFFER must be: (1) An expression of _________, __________, or __________ to enter into a K; (2) ________ and ________ in its terms; and (3) __________ to the offeree.: To be valid, an OFFER must be:

(1) An expression of PROMISE, UNDERTAKING, or COMMITMENT to enter into a K;

(2) DEFINITE and CERTAIN in its terms; and

(3) COMMUNICATED to the offeree.
An offer creates a ___________ of __________ in the offeree.: An offer creates a POWER of ACCEPTANCE in the offeree.
QUASI-K: This is NOT a K, but rather a way to avoid ________ ____________.: QUASI-K: This is NOT a K, but rather a way to avoid UNJUST ENRICHMENT.

NOTE: The enriched party must pay RESTITUTION equal to the unjust enrichment.
___________ K: One otherwise valid but for which some DEFECT exists extraneous to formation (e.g., Statute of Frauds).: UNENFORCEABLE K: One otherwise valid but for which some DEFECT exists extraneous to formation (e.g., Statute of Frauds).
________ K: One that a party may elect to AVOID or RATIFY (e.g., K by a minor).: VOIDABLE K: One that a party may elect to AVOID or RATIFY (e.g., K by a minor).
A K w/o any LEGAL EFFECT from the beginning is _______.: A K w/o any LEGAL EFFECT from the beginning is VOID.

Example: An agreement to commit a crime
To create an enforceable K, there must be: (1) _________ _________ (ie. offer + acceptance); (2) __________ or a substitute; and (3) No ___________ to formation.: To create an enforceable K, there must be:

(1) MUTUAL ASSENT (ie. offer + acceptance);

(2) CONSIDERATION or a substitute; and

(3) No DEFENSES to formation.
The failure of a __________ gives rise to a breach. The failure of a __________ relieves a party of the obligation to perform.: The failure of a PROMISE gives rise to a breach.

The failure of a CONDITION relieves a party of the obligation to perform.
___________: When duties to perform a K are discharged by agreement of both parties.: RESCISSION: When duties to perform a K are discharged by agreement of both parties.

NOTE: A K to be rescinded must be EXECUTORY on both sides!
Manifestation of assent to an offer.: ACCEPTANCE: Manifestation of assent to an offer.
An INTENDED BENEFICIARY must be _________ in the K!: An INTENDED BENEFICIARY must be DESIGNATED in the K!
A claim that the subject matter has been sold to a person who purchased FOR VALUE and IN GOOD FAITH.: SALE TO A BONA FIDE PURCHASER: A claim that the subject matter has been sold to a person who purchased FOR VALUE and IN GOOD FAITH.
________ _________: A claim that the party seeking SPECIFIC PERFORMANCE is guilty of wrongdoing in the transaction being sued upon.: UNCLEAN HANDS: A claim that the party seeking SPECIFIC PERFORMANCE is guilty of wrongdoing in the transaction being sued upon.
________: A claim that P has DELAYED in bringing the action and that the delay has PREJUDICED D.: LACHES: A claim that P has DELAYED in bringing the action and that the delay has PREJUDICED D.
An agreement in which one party to a K agrees to accept performance different from that originally promised.: ACCORD: An agreement in which one party to a K agrees to accept performance different from that originally promised.
A person to whom a debt is owed by the promisee.: CREDITOR BENEFICIARY: A person to whom a debt is owed by the promisee.
X (the obligor) contracts w/ Y (the assignor). Y assigns his right to X's performance to Z (the assignee).: ASSIGNMENT: X (the obligor) contracts w/ Y (the assignor). Y assigns his right to X's performance to Z (the assignee).
X (the obligor/delegator) promises to perform for Y (the obligee). X delegates her duty to Z (the delegatee).: DELEGATION: X (the obligor/delegator) promises to perform for Y (the obligee). X delegates her duty to Z (the delegatee).
When a party encounters extreme and unreasonable difficulty or expense that was NOT anticipated.: IMPRACTICABILITY: When a party encounters extreme and unreasonable difficulty or expense that was NOT anticipated.
What is the goal of COMPENSATORY DAMAGES?: The goal of COMPENSATORY DAMAGES--->To put the nonbreaching party into as good of a position as he would have been in had the other party fully performed.
This induces the obligor to sign an instrument w/o KNOWLEDGE or REASONABLE OPPORTUNITY to learn of its character or essential terms.: FRAUD IN THE FACTUM: This induces the obligor to sign an instrument w/o KNOWLEDGE or REASONABLE OPPORTUNITY to learn of its character or essential terms.
DISCHARGE BY FRUSTRATION OF PURPOSE This requires: (1) A ___________ EVENT; (2) That was NOT __________ ____________ at the time of entering into the K; (3) Which completely or almost completely ________ the p: DISCHARGE BY FRUSTRATION OF PURPOSE

This requires:

(1) A SUPERVENING EVENT;

(2) That was NOT REASONABLY FORSEEABLE at the time of entering into the K;

(3) Which completely or almost completely DESTROYS the purpose of the K; and

(4) The purpose was understood by BOTH parties.
A K is DIVISIBLE if: (1) The ___________ of each party is divided into 2 or more parts under the K; (2) The number of parts due from each party is the ________; and (3) The performance of each part by one party is the agr: A K is DIVISIBLE if:

(1) The PERFORMANCE of each party is divided into 2 or more parts under the K;

(2) The number of parts due from each party is the SAME; and

(3) The performance of each part by one party is the agreed EQUIVALENT of the corresponding part by the other party.
Is this an ASSIGNMENT or a DELEGATION? X contracts w/ Y. Y assigns his right to X's performance to Z.: ASSIGNMENT: X (the obligor) contracts w/ Y (the assignor) and Y assigns his right to X's performance to Z (the assignee).
A contracts w/ B that B will render some performance to C. What is C?: THIRD-PARTY BENEFICIARY

A (the promisee) contracts w/ B (the promisor) that B will render some performance to C (the third-party beneficiary).
Is this an ASSIGNMENT or a DELEGATION? Y promises to perform for X. Y delegates her duty to Z.: DELEGATION: Y (the obligor/delegator) promises to perform for X (the obligee) and Y delegates her duty to Z (the delegatee).
Can assignments be ORAL?: YES! Assignments CAN be ORAL.
X contracts w/ Y and Y assigns his right to Xâ€™s performance to Z. What is it?: This is an ASSIGNMENT!

X contracts w/ Y and Y assigns his RIGHT to Xâ€™s performance to Z.
Y promises to perform for X and Y delegates her duty to Z. What is it?: This is a DELEGATION!

Y promises to perform for X and Y delegates her DUTY to Z.
THIRD-PARTY BENEFICIARY A (the _________) contracts w/ B (the _________) that B will render some performance to C (the ____________).: THIRD-PARTY BENEFICIARY

A (the PROMISOR) contracts w/ B (the PROMISEE) that A will render some performance to C (the THIRD-PARTY BENEFICIARY).
INTENDED BENEFICIARY To determine whether a beneficiary is intended, consider whether he is: (1) ___________ in the K; (2) RECEIVES ____________ DIRECTLY from the promisor; or (3) Has some ___________ w/ the PR: INTENDED BENEFICIARY

To determine whether a beneficiary is intended, consider whether he is:

(1) IDENTIFIED in the K;

(2) RECEIVES PERFORMANCE DIRECTLY from the promisor; or

(3) Has some RELATIONSHIP w/ the PROMISEE to indicate intent to benefit.
List the 2 types of INTENDED BENEFICIARIES: (1) ___________________ (2) ___________________: List the 2 types of INTENDED BENEFICIARIES:

(1) CREDITOR BENEFICIARY

(2) DONEE BENEFICIARY
WHEN DOES A BENEFICIARY ACQUIRE CONTRACTUAL RIGHTS? A third party can enforce a K ONLY when his _______ have ________. This occurs when he: (1) MANIFESTS ________ to a promise in the manner requested by the parties;: WHEN DOES A BENEFICIARY ACQUIRE CONTRACTUAL RIGHTS?

A third party can enforce a K ONLY when his RIGHTS have VESTED.

This occurs when he:

(1) MANIFESTS ASSENT to a promise in the manner requested by the parties;

(2) Brings a SUIT to ENFORCE the PROMISE; or

(3) MATERIALLY CHANGES POSITION in justifiable reliance on the promise.
Prior to _________, the promisee and promisor are free to ________ or RESCIND the beneficiary's rights under the K.: Prior to VESTING, the promisee and promisor are free to MODIFY or RESCIND the beneficiary's rights under the K.
RISK OF LOSS Risk of loss does NOT pass to the BUYER if the goods are so ________ that he has a ______ to REJECT them. If this is the case, the ROL does NOT pass until: (1) The defects are ________; or (2) The: RISK OF LOSS

Risk of loss does NOT pass to the BUYER if the goods are so DEFECTIVE that he has a RIGHT to REJECT them.

If this is the case, the ROL does NOT pass until:

(1) The defects are CURED; or

(2) The buyer ACCEPTS the goods.
RISK OF LOSS K requires seller to ship goods by carrier but does NOT explicitly require him to deliver them to a particular location. When does ROL pass to the buyer? When the goods are _____ _________ to the ________.: RISK OF LOSS

K requires seller to ship goods by carrier but does NOT explicitly require him to deliver them to a particular location.

ROL passes to the buyer when the goods are DULY DELIVERED to the CARRIER.
PERIOD OF ACCEPTANCE A _______ has the right to reject goods that do NOT _______ to the K until he has _________ the goods.: PERIOD OF ACCEPTANCE

A BUYER has the right to reject goods that do NOT CONFORM to the K until he has ACCEPTED the goods.
WHEN DOES ACCEPTANCE OCCUR? Acceptance occurs when the buyer: (1) Indicates that he will ______ the goods, after reasonable ____________, even though they are ___________; (2) Fails to ________ w/i a ________ time after: WHEN DOES ACCEPTANCE OCCUR?

Acceptance occurs when the buyer:

(1) Indicates that he will KEEP the goods, after reasonable INSPECTION, even though they are NON-CONFORMING;

(2) Fails to REJECT w/i a REASONABLE time after TENDER or DELIVERY of the goods or fails to SEASONABLY NOTIFY the seller of his REJECTION; or

(3) Does an act INCONSISTENT w/ the seller's OWNERSHIP.
The buyer is allowed a __________ time to _______ the goods before accepting or rejecting them.: The buyer is allowed a REASONABLE time to INSPECT the goods before accepting or rejecting them.
TRUE/FALSE: If a buyer accepts nonconforming goods, he cannot still due for damages.: FALSE!

A buyer can STILL sue for damages EVEN IF he accepts nonconforming goods.
PAROL EVIDENCE RULE This prohibits introduction of _______ or ______________ ORAL _____________ to contradict a __________ K.: PAROL EVIDENCE RULE

This prohibits introduction of PRIOR or CONTEMPORANEOUS ORAL STATEMENTS to contradict a WRITTEN K.
FAILURE OF CONSIDERATION This means that some element of the promised consideration _________ now be given. NOTE: This does NOT mean that the K lacked consideration when _______.: FAILURE OF CONSIDERATION

This means that some element of the promised consideration CANNOT now be given.

NOTE: This does NOT mean that the K lacked consideration when MADE.
OFFEROR'S POWER TO REVOKE An offeror has the power to revoke an offer any time before _________ has occurred, EVEN IF he has ___________ to keep the offer open UNLESS: (1) ___________ has been paid to keep the offer _______ (thus fo: OFFEROR'S POWER TO REVOKE

An offeror has the power to revoke an offer any time before ACCEPTANCE has occurred, EVEN IF he has PROMISED to keep the offer open UNLESS:

(1) CONSIDERATION has been paid to keep the offer OPEN (thus forming an OPTION K);

(2) The OFFEREE reasonably RELIES on the offer to his DETRIMENT; or

(3) The offer is a MERCHANT'S FIRM OFFER.
Under the UCC, when an acceptance proposes ADDITIONAL TERMS, a K would be formed under the terms of the offer UNLESS _______ parties are _________.: Under the UCC, when an acceptance proposes ADDITIONAL TERMS, a K would be formed under the terms of the offer UNLESS BOTH parties are MERCHANTS.
COMMON LAW Under the common law, an ________ must mirror the ______; if new ________ are added in the acceptance, it is treated as a ____________.: COMMON LAW

Under the common law, an ACCEPTANCE must mirror the OFFER; if new TERMS are added in the acceptance, it is treated as a COUNTER-OFFER.
UCC Under the UCC, ADDITIONAL TERMS in a K between MERCHANTS usually become part of the K when the _________ does not ________ the offer. EXCEPTION: If the _________ notifies the OFFEREE w/i a ________ time after receiving _________: UCC

Under the UCC, ADDITIONAL TERMS in a K between MERCHANTS usually become part of the K when the ACCEPTANCE does not MIRROR the offer.

EXCEPTION: If the OFFEROR notifies the OFFEREE w/i a REASONABLE time after receiving ACCEPTANCE that he OBJECTS to the new terms, the K is formed according to the terms of the OFFER.
TRUE/FALSE: Paying for goods in advance neither impairs the buyer's right to inspect nor his right to assert his remedies.: TRUE!

Paying for goods in advance neither impairs the buyer's right to inspect nor his right to assert his remedies.
SPECIFIC PERFORMANCE When one party breaches a K, the ___________ party may obtain specific performance of the K when the ________ remedy (ie. ________) is INADEQUATE. NOTE: Legal remedies are inadequate when the subject matter of t: SPECIFIC PERFORMANCE

When one party breaches a K, the NONBREACHING party may obtain specific performance of the K when the LEGAL remedy (ie. DAMAGES) is INADEQUATE.

NOTE: Legal remedies are inadequate when the subject matter of the K is UNIQUE.
IMPOSSIBILITY A contractual duty to perform may be __________ by objective impossibility (ie. NO ONE could have performed). HOWEVER, ___________ impossibility (D could not perform) is INSUFFICIENT.: IMPOSSIBILITY

A contractual duty to perform may be DISCHARGED by objective impossibility (ie. NO ONE could have performed).

HOWEVER, SUBJECTIVE impossibility (D could not perform) is INSUFFICIENT.
Contractual duties will be discharged if it has become _________ to perform them. To result in discharge of a K, the impossibility MUST be ___________ (ie. NO ONE would be able to perform).: Contractual duties will be discharged if it has become IMPOSSIBLE to perform them.

To result in discharge of a K, the impossibility MUST be OBJECTIVE (ie. NO ONE would be able to perform).
When destruction of the subject matter of the K is NOT the ________ of either party, the parties are __________ from their duties to ________.: When destruction of the subject matter of the K is NOT the FAULT of either party, the parties are DISCHARGED from their duties to PERFORM.
A K for the sale of LAND need only _______ the land and contain a ________ term.: A K for the sale of LAND need only IDENTIFY the land and contain a PRICE term.
MAILBOX RULE At ________ law, an acceptance is effective upon ________. HOWEVER, ________ are effective ONLY upon RECEIPT.: MAILBOX RULE

At COMMON law, an acceptance is effective upon DISPATCH.

HOWEVER, REVOCATIONS are effective ONLY upon RECEIPT.
A manifestation of assent to an offer.: ACCEPTANCE: A manifestation of assent to an offer.
OFFER For a communication to be an offer, it must create a REASONABLE ____________ in the offeree that the offeror is willing to enter into a K on the basis of the _________ terms. There must be a _________, __________, or _________: OFFER

For a communication to be an offer, it must create a REASONABLE EXPECTATION in the offeree that the offeror is willing to enter into a K on the basis of the OFFERED terms.

There must be a PROMISE, UNDERTAKING, or COMMITMENT to enter into a K w/ CERTAIN and DEFINITE terms.
Under the UCC, a promise to _________ an existing K is enforceable even ___________ consideration. NOTE: So long as the proposal to modify is made in _______ _______!: Under the UCC, a promise to MODIFY an existing K is enforceable even WITHOUT consideration.

NOTE: So long as the proposal to modify is made in GOOD FAITH!
Under the UCC, if a merchant accepts another merchant's offer and proposes ADDITIONAL or DIFFERENT terms, is there an effective acceptance so that a K is formed?: Under the UCC, if a merchant ACCEPTS another merchant's offer and proposes ADDITIONAL or DIFFERENT terms, there is an effective ACCEPTANCE and a K is formed.
COMMON LAW A promise is ONLY enforceable if it is supported by _________. Is a promise to perform a PREEXISTING LEGAL DUTY valid consideration?: COMMON LAW

A promise is ONLY enforceable if it is supported by CONSIDERATION.

A promise to perform a PREEXISTING LEGAL DUTY is NOT VALID consideration.
UCC An acceptance is _______ EVEN IF it contains additional or different terms, UNLESS acceptance is made ________ on ASSENT to those terms. COMPARE TO THE COMMON LAW! Under the common law, an acceptance w/ additional ter: UCC

An acceptance is VALID EVEN IF it contains additional or different terms, UNLESS acceptance is made CONDITIONAL on ASSENT to those terms.

COMPARE TO THE COMMON LAW!

Under the common law, an acceptance w/ additional terms is a REJECTION and a COUNTEROFFER.
NONCONFORMING GOODS When nonconforming goods are delivered, the buyer may: (1) _______ them and _______ the K or ______ for DAMAGES; or (2) ________ any commercial units, ______ the rest, and sue for DAMAGES.: NONCONFORMING GOODS

When nonconforming goods are delivered, the buyer may:

(1) REJECT them and CANCEL the K or SUE for DAMAGES; or

(2) ACCEPT any commercial units, REJECT the rest, and sue for DAMAGES.
Once the goods are accepted, the buyer generally is _________ on the K and it is too late to _________. HOWEVER, the ________ retains the right to sue for ________ for any nonconformity.: Once the goods are accepted, the buyer generally is BOUND on the K and it is too late to CANCEL.

HOWEVER, the BUYER retains the right to sue for DAMAGES for any nonconformity.
INCIDENTAL/INTENDED BENEFICIARIES Generally, one must be a _______ to the K to sue for ________ under it. HOWEVER, there are exceptions for certain third-party beneficiaries-->__________ BENEFICIARIES. _________ THIRD-: INCIDENTAL/INTENDED BENEFICIARIES

Generally, one must be a PARTY to the K to sue for BREACH under it.

HOWEVER, there are exceptions for certain third-party beneficiaries-->INTENDED BENEFICIARIES.

INCIDENTAL THIRD-PARTY BENEFICIARIES have NO right to enforce the K.
TRUE/FALSE: A buyer can sue to recover for a nonconformity EVEN IF he accepts the goods.: TRUE!

A buyer can sue to recover for a nonconformity EVEN IF he accepts the goods.
PROMISSORY ESTOPPEL This provides that a ________ that the promisor should reasonably expect to induce _______ or __________ on the part of the promisee, and which does induce such action or forbearance, is ________ if injustice can be avoided: PROMISSORY ESTOPPEL

This provides that a PROMISE that the promisor should reasonably expect to induce ACTION or FORBEARANCE on the part of the promisee, and which does induce such action or forbearance, is BINDING if injustice can be avoided only by ENFORCEMENT of a promise.
IMPLIED IN FACT K This arises when _______ is manifested by _________, as opposed to assent by _______ or __________ language, which gives rise to an ________ K.: IMPLIED IN FACT K

This arises when ASSENT is manifested by CONDUCT, as opposed to assent by ORAL or WRITTEN language, which gives rise to an EXPRESS K.
QUASI-K This is used to avoid _________ and provide a ________ in situations of ________ ___________.: QUASI-K

This is used to avoid INJUSTICE and provide a REMEDY in situations of UNJUST ENRICHMENT.
OFFEROR'S POWER TO REVOKE--LIMITATIONS Offers NOT supported by __________ or DETRIMENTAL ____________ can be revoked AT WILL by the offeror. The offeror's power to revoke is limited if: (1) There is an _______ K supported: OFFEROR'S POWER TO REVOKE--LIMITATIONS

Offers NOT supported by CONSIDERATION or DETRIMENTAL RELIANCE can be revoked AT WILL by the offeror.

The offeror's power to revoke is limited if:

(1) There is an OPTION K supported by CONSIDERATION;

(2) There is a FIRM OFFER under the UCC;

(3) The OFFEREE has DETRIMENTALLY RELIED on the offer and the offeror could REASONABLY HAVE EXPECTED such reliance; or

(4) In the case of a UNILATERAL K, the offeree has begun to PERFORM.
TERMINATION BY OFFEREE--REJECTION OR LAPSE OF TIME An offeree may reject an offer: (1) _________; or (2) By making a ___________ (as distinguished from a mere _________). NOTE: A counteroffer is BOTH a _______: TERMINATION BY OFFEREE--REJECTION OR LAPSE OF TIME

An offeree may reject an offer:

(1) EXPRESSLY; or

(2) By making a COUNTEROFFER (as distinguished from a mere INQUIRY).

NOTE: A counteroffer is BOTH a REJECTION and a NEW OFFER.
Once an offer has been rejected, the _________ offer is ____ valid (ie. cannot be ________). HOWEVER, if the offeror restates the offer ______ it has been _________, the _______ has the power to accept the new offer.: Once an offer has been rejected, the ORIGINAL offer is NOT valid (ie. cannot be ACCEPTED).

HOWEVER, if the offeror restates the offer AFTER it has been REJECTED, the OFFEREE has the power to accept the new offer.
REJECTION OF OPTION Rejection of an option does _____ terminate the offer. The _________ is still free to _______ the offer w/i the option period UNLESS the ________ has DETRIMENTALLY _________ on the offeree's _________.: REJECTION OF OPTION

Rejection of an option does NOT terminate the offer. The OFFEREE is still free to ACCEPT the offer w/i the option period UNLESS the OFFEROR has DETRIMENTALLY RELIED on the offeree's REJECTION.
MERGER CLAUSE: This is a recital that the K is ________ on its face.: MERGER CLAUSE: This is a recital that the K is COMPLETE on its face.
ASSIGNMENT: This is a K that does _____ contemplate performance to a _______ PARTY when the K is made, but later, one of the parties _________ his rights to another.: ASSIGNMENT: This is a K that does NOT contemplate performance to a THIRD PARTY when the K is made, but later, one of the parties TRANSFERS his rights to another.
MODIFICATION A modification solely for the ________ of ____ of the parties is UNENFORCEABLE.: MODIFICATION

A modification solely for the BENEFIT of ONE of the parties is UNENFORCEABLE.
The common law preexisting legal duty rule does ____ apply to modifications under the UCC.: The common law preexisting legal duty rule does NOT apply to modifications under the UCC.
The common law enforces promises ONLY if they are supported by __________. A promise to perform a preexisting duty is ____ valid consideration.: The common law enforces promises ONLY if they are supported by CONSIDERATION.

A promise to perform a preexisting duty is NOT valid consideration.
The UCC allows _______ _______ MODIFICATIONS even w/o consideration.: The UCC allows GOOD FAITH MODIFICATIONS even w/o consideration.
REVIEW: (1) The common law preexisting legal duty rule does NOT apply to modifications under the UCC. (2) The common law enforces promises ONLY if they are supported by CONSIDERATION. (3) A promise to perform a preexistin: REVIEW:

(1) The common law preexisting legal duty rule does NOT apply to modifications under the UCC.

(2) The common law enforces promises ONLY if they are supported by CONSIDERATION.

(3) A promise to perform a preexisting duty is NOT valid consideration.
PREEXISTING LEGAL DUTY RULE Where one is under a preexisting legal duty to perform, performance of that same duty will ____ be sufficient consideration to support a promise to pay additional sums for the performance.: PREEXISTING LEGAL DUTY RULE

Where one is under a preexisting legal duty to perform, performance of that same duty will NOT be sufficient consideration to support a promise to pay additional sums for the performance.
Although consideration is usually required to modify a K, it is ____ required where the parties are modifying MERELY TO CORRECT AN ERROR in the original K.: Although consideration is usually required to modify a K, it is NOT required where the parties are modifying MERELY TO CORRECT AN ERROR in the original K.
If a legal obligation is NOT enforceable under law (ie. debt barred by SOL), a NEW PROMISE to fulfill the legal obligation is ENFORCEABLE if it is IN WRITING. To what extent?: If a legal obligation is NOT enforceable under law (ie. debt barred by SOL), a NEW PROMISE to fulfill the legal obligation is ENFORCEABLE if it is IN WRITING.

To what extent?

Only according to the NEW TERMS, not the terms of the original legal obligation.
Asserting information one knows is untrue.: FRAUDULENT MISPREPRESENTATION: Asserting information one knows is untrue.

NOTE: The K is voidable by the innocent party if he justifiably relied on the misrepresentation.
Asserting information that he does not know is untrue but that would induce a reasonable person to enter into a K.: MATERIAL MISREPRESENTATION: Asserting information that he does not know is untrue but that would induce a reasonable person to enter into a K.

NOTE: The K is voidable by the innocent party if he justifiably relied on the misrepresentation.
If a party is tricked into assenting w/o understanding the significance of her action.: FRAUD IN THE FACTUM: If a party is tricked into assenting w/o understanding the significance of her action.

cf. FRAUDULENT MISREPRESENTATION (a type of fraud in the inducement) - K is void.
PREEXISTING DUTY RULE It does NOT apply when?: PREEXISTING DUTY RULE

It does NOT apply:

When the preexisting duty is owed to a THIRD PERSON!!!

When there is an HONEST DISPUTE as to the duty!!!

When there are UNFORSEEN CIRCUMSTANCES sufficient to discharge a party!!!

When NEW OR DIFFERENT consideration is promised!!!

When the promise is to RATIFY A VOIDABLE OBLIGATION!!!
Payment of a < sum than due on an existing debt is generally NOT sufficient consideration for a promise by the creditor to discharge a debt. However, ...: Payment of a smaller sum than due on an existing debt is generally NOT sufficient consideration for a promise by the creditor to discharge a debt.

However, courts will attempt to avoid this result by applying the EXCEPTIONS TO THE PREEXISTING DUTY RULE!!!
A promise to refrain from suing on a claim may consistute consideration if:: A promise to refrain from suing on a claim may consistute consideration if:

The claim is valid; or

The claimant in good faith believed the claim was valid.
PAST OR MORAL CONSIDERATION A promise given in exchange for something already done does NOT satisfy the bargain requirement. EXCEPTIONS: ...: PAST OR MORAL CONSIDERATION

A promise given in exchange for something already done does NOT satisfy the bargain requirement.

EXCEPTIONS: Where a past obligation is unenforceable b/c of a technical defense (ie. SOL), that obligation will be enforceable IF A NEW PROMISE is made IN WRITING or is PARTIALLY PERFORMED.
STATUTE OF FRAUDS A _______ for the sale of goods of $____ or more is NOT enforceable UNLESS evidenced by a _______ signed by the party to be _______. However, an ____ K for such goods is enforceable to the extent of goods ________: STATUTE OF FRAUDS

A PROMISE for the sale of goods of $500 or more is NOT enforceable UNLESS evidenced by a WRITING signed by the party to be CHARGED.

However, an ORAL K for such goods is enforceable to the extent of goods RECEIVED and ACCEPTED by the buyer.

NOTE: Oral K's for SPECIALLY MANUFACTURED GOODS that are NOT suitable for sale in the ORDINARY COURSE of the seller's business are also enforceable when the seller has begun SUBSTANTIALLY to perform.
If a buyer breaches by refusing to ______ goods, the seller is entitled to recover the difference between ___ PRICE and _______ or ________ PRICE.: If a buyer breaches by refusing to ACCEPT goods, the seller is entitled to recover the difference between K PRICE and MARKET or RESALE PRICE.
If there is an enforceable K and buyer breaches by refusing to ______ goods, then seller is entitled to recover the difference between __ PRICE and _____ or ________ PRICE.: If there is an enforceable K and buyer breaches by refusing to ACCEPT goods, then seller is entitled to recover the difference between K PRICE and MARKET or RESALE PRICE.
If a K is unenforceable b/c of noncompliance w/ the Statute of Frauds, a party can sue for ___________ of any benefit that has been conferred. HOWEVER, an oral K for the sale of goods of $500 or more is enforceable to the extent of goods _____: If a K is unenforceable b/c of noncompliance w/ the Statute of Frauds, a party can sue for RESTITUTION of any benefit that has been conferred.

HOWEVER, an oral K for the sale of goods of $500 or more is enforceable to the extent of goods RECEIVED and ACCEPTED by the buyer.
If there is an enforceable K, seller has a right to ______ goods on a buyer who has NOT accepted them ONLY IF the seller is UNABLE TO ______ the goods or if the goods have been _____ or _________ after the RISK OF LOSS has passed to the ______.: If there is an enforceable K, seller has a right to FORCE goods on a buyer who has NOT accepted them ONLY IF the seller is UNABLE TO RESELL the goods or if the goods have been LOST or DAMAGED after the RISK OF LOSS has passed to the BUYER.
SPECIFIC PERFORMANCE What type of K cannot be enforced by SPECIFIC PERFORMANCE?: SPECIFIC PERFORMANCE

A K for PERSONAL SERVICES is not specifically enforceable!!!
LACHES This is available as an ________ DEFENSE if P has UNREASONABLY _______ in bringing the action and the delay is ___________ to D.: LACHES

This is available as an EQUITABLE DEFENSE if P has UNREASONABLY DELAYED in bringing the action and the delay is PREJUDICIAL to D.
When are NOMINAL DAMAGES appropriate?: When are NOMINAL DAMAGES appropriate?

Where there is a BREACH, but NO ACTUAL LOSS!
The "mailbox rule" does NOT apply to ________ K's.: The "mailbox rule" does NOT apply to OPTION K's.
For a K to be RESCINDED, there must be a ________ OF THE _______.: For a K to be RESCINDED, there must be a MEETING OF THE MINDS.
NONCONFORMING GOODS A buyer who receives nonconforming goods generally has a right to: - ______ all; - ______ all; or - _______ any commercial units and _______ the rest: NONCONFORMING GOODS

A buyer who receives nonconforming goods generally has a right to:

- ACCEPT all;
- REJECT all; or
- ACCEPT any commercial units and REJECT the rest
REJECTION To properly reject, the rejecting party must, w/i a _________ TIME after ________ and before ACCEPTANCE, __________ NOTIFY the seller of the rejection. If the notice fails to state a _______, the buyer CANNOT rely on that: REJECTION

To properly reject, the rejecting party must, w/i a REASONABLE TIME after DELIVERY and before ACCEPTANCE, SEASONABLY NOTIFY the seller of the rejection.

If the notice fails to state a DEFECT, the buyer CANNOT rely on that defect if the SELLER could have CURED by supplying CONFORMING GOODS.
RIGHT OF REJECTION This right exists for ____ defect, whether SUBSTANTIAL or ______. The UCC (which governs _____ K's) gives buyers the right to a _______ _________.: RIGHT OF REJECTION

This right exists for ANY defect, whether SUBSTANTIAL or MINOR.

The UCC (which governs SALES K's) gives buyers the right to a PERFECT TENDER.
When a new K substitutes a new party under the terms of the old K.: NOVATION: When a new K substitutes a new party under the terms of the old K.
A written K may be modified orally UNLESS the modification brings the K w/i the ________ OF _______.: A written K may be modified orally UNLESS the modification brings the K w/i the STATUTE OF FRAUDS.

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Deck Info

Number of cards 144