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BLAW test 3
Terms in this set (55)
Statute of Frauds
- certain classes of contracts to be enforceable must be evidenced by 1. a writing and 2. signed by the person sought to be bound. Found in contracts where lying was a problem so now it needs to be written down to be enforceable. Contracts under the statute of frauds are VOIDABLE.
Majority of states hold that a contract that does not comply with the statute of frauds is unenforceable.
- undertaking to pay the debt or be liable for the default of another.
Parole Evidence Rule
- Based on idea that there was never an oral agreement prior to contract/or the parties' abandoned original contract when they began negotiating. Parole or external evidence will not be allowed into evidence to add or modify a contract that is fully integrated or complete on its face.
Rules of Construction
- How do you interpret the language? Ordinary words are to be interpreted based on ordinary meaning.
- Always look at the entire agreement. Law exercises good faith and applies contract to the better party if one is worse.
Whole Contract Rule
-The provisions of a contract must be construed as a whole so that every party is given effect. Every word is equally important.
Incorporation by Reference
- Contract consisting of both the original document and the detailed document that covers missing terms in the original.
Strict Construction Against Drafting Party
- ambiguity is held against the drafting party because they are the ones in power.
Law will fill in the blanks when there is something you have left out. Such as using such skills necessary to perform work. Also reasonable time is implied. There is an implied covenant of good faith (absence of any problems).
Third Party Beneficiary
- Third person whom the parties to a contract intend to benefit from the making of the contract.
- Transfer of a right, generally rights to receive payment. Courts encourage ability to assign because it promotes commerce
Warranty of Assignor
Assignor is the owner of the claim or the right assigned.
Delegation of Duties
- Transfer of duties by a contracting party to another party that will perform them. Contracting party remains liable in case of default even with delegation.
- action releasing you from completion of contract.
Time (Tender) Of Performance
- If time is of the essence (time is material). This is specified in contact. If not specified then it would be reasonable performance. Depends on facts of given contract.
- An offer to perform something. If someone tenders payment you still owe principal. 2 types: A) Cash B) Check aka conditional payment.
Law of Perfect Tender
Having to accept anything but exactly what was ordered. Right to get what you asked for. Get 0000
Substantial Performance Doctrine
- (Adequacy of Performance) Exception to the rule of perfect tender. Equitable rule that if good faith attempt to perform does not precisely meet the terms of the agreement, the agreement will still be considered complete if the essential purpose accomplished.
- Objective. Based on the fact that the thing cannot be done due to external conditions. Common law. Terminates contract
- Suspends the duty to perform. Does not terminate contract. Common Law. Weather is in this category.
Frustration of Purpose
- Because of change in circumstances the purpose of the contract must have no value (frustration must be complete) to the party entitled to receive performance. This discharges a contract. Has to complete destroy the purpose of the contract. Example- Guys getting hotel room to watch parade, parade route changes, the room is now useless.
- U.C.C. Applies to sales. Imposed to deal with the harsh rule that a party must perform its contracts unless it is absolutely impossible. However, not all impractabilities are excuses for nonperformance. Does not require same level of frustration. Expanded frustration of purpose. Tangible movable personal property.
- Surrendering all assets when one is unable to pay debts results in discharge for unpaid balance of debt.
Statute of Limitations
- Statute that restricts the period of time in which a lawsuit can be brought against someone. The maximum period for judgments of record is 10-20 years.
-failure to act or to perform in the manner called for in a contract. Frees material party from contract. If it is a quasi contract- there are equitable remedies (status quo ante to prevent unjust enrichment) instead of damages. Law gives rise to damages to give non-breaching party the benefit of the bargain.
- When a party expressly declares that performance will not be made when required. Can result in repudiation (undoing of the contract). Refers to time of the contract.
- result of a buyer or seller refusing to perform the contract as stated.
- Can occur if there is a material breach. Result of the buyer or seller refusing contract made in advance of time of performance.
- U.C.C. calls it cover. The injured party is required to try and reduce damages if reasonably possible. After a major breach, anticipatory breach, occurs.
- Arise from Quasi contracts when there is a material breach.
- status quo ante. Back to original standing.
- mutual mistake of fact. Annul contract. Money back to original standing.
- contract says the wrong thing so you can both rewrite it.
- (injoin) Order from court to refrain from doing a specified act. See it when an activity lacks utiity or usefullness. Abating a nuesense
- Chattel (unique items). This is allowed for unique chattel of money or other compensation wouldn't be adequate because of unique nature of the chattel. This is also true in terms of land.
Curative Tender, Cure
- The act of righting a `breach through curative tender. If time is not of the essence and there is still time to perform under U.C.C. we allow individuals making defective tender to cure their breach. Second chance for a seller to make proper tender.
Limited Damages Clause
- specification to exact compensation in case of breach of contract. Injured party cannot collect more then the specified amount.
Limitation of Liability Clause
- provision in a contract stating that one of the parties shall not be liable for damages in breach of contract. Business people are allowed to do this. However, there are no waivers to personal injury.
- property that is movable or intangible. Such as possessions or intellectual property.
- Means land and things embedded in the land such as oil tanks. Fixtures are things added to a building.
- Right to ownership
- Title to a personal property that is voluntarily transferred by a party not receiving anything in exchange.
- Not entitled to a reward or compensation without a contract specifying. Person finding property acquires possession but not title. If it is lost in public place where the person could find it, there is no possession by the finder.
- Common law word referring to the property that returns to the government. Transfer to the state the title of a person's property when a descendant does not claim or person is not survived by an heir. Happens with insurance payments, refunds, and dividends most often
- wrongful taking of property. Civil stealing
Relationship that exists when personal property is delivered into the possession of another under an agreement that identical property will be returned in accordance with agreement. Has 2 parts 1. Contract to Bail 2. Actual Bailing of Property.
- Bailment in which the bailee does not receive any compensation or advantage
- bailment imposed by law as apposed to one created by contract, whereby the bailee must preserve the property and redeliver it to the owner.
3rd Party Beneficiary
- 3 people and none are added. Contracts ends with 3
- Beginning with 2 people, then add 1. Ends with 3
-Substation for an old contract with new one. Starts with 2 then adds 1 and subtracts 1. Ends with 2.
- 3rd party who was going to collect can sue b for breach of contract. Enforceable Rights
- Life insurance. Beneficiary can sue. Enforceable Rights.
- If there was no intent to benefit this 3rd party can't sue. Non Enforceable.
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