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Terms in this set (47)
English Parliament 1677
"A Statute for the Prevention of Frauds and Perjuries."
Statue of Frauds
Certain contracts, to be enforceable, must be evidenced by a writing and signed by the person sought to be bound.
Classes of Contracts Covered by the Statute of Frauds
Contracts evidencing an interest in real property
Contracts which by their terms cannot be performed within one year
Contractual promises to answer for the debt of another
Promises of the executor of an estate to pay estate debts from personal funds
Promises arising from a promise to marry
U.C.C. contracts exceeding $500.00
Parol Evidence Rule
Parol, or outside, evidence shall not be admitted to vary, modify, alter, or contradict the written terms of an unambiguous, complete, merged and integrated contract.
Exceptions to Parol Evidence Rule
Evidence of fraud, duress, or mistake
Failure of consideration
Sources of Missing Terms
Course of conduct and course of performance
Custom and usage of Trade
Types of Third Party Beneficiaries
Rights against: obligor, prommisor, assignor
Not really a third party beneficiary, rights against neither
Assignment is the transfer of a contract right (intangible right) to a third party
The Assignee takes the contract (right) subject to claims, defenses, and set-offs good against the assignor
Where assignment is prohibited by the contract
Where assignment would increase the burden of performance
Where the right is to receive personal services
The assigned right is valid
The Assignor owns the claim and has the right to assign
Personal or Non-standardized Performance
Types of Conditions
Promises: major and minor
to offer performance
Tender of Performance
Tender of Payment
Time of Performance
When Time is a material term, then it is said that "time of is of the essence."
Adequacy of PerformanceThe Substantial Performance Doctrine
The substantial performance doctrine holds that if a party has performed a contract substantially, but not perfectly, then that party will be allowed the contract price less set-offs, if the defects are not intentional, nor material.
Discharge by Agreement
1. By the terms of the original contract
2. Mutual cancellation
3. Material rescission
6. Accord and Satisfaction
Standard is: Objective not subjective
Impossibility → Common Law
Frustration of Purpose - Common Law
Commercial Impracticability - U.C.C.
Replace defective goods with conforming goods when time is not of the essence.
Statute of Limitations
Provides a time period within which lawsuits on contract claims must be brought, and bars claims outside this time period.
A federal law that allows debtors to seek and be granted discharge from their debts.
Purpose of Contract Damages
To place non-breaching party in the position they would have enjoyed had the contract been performed as per its terms.
Purpose of Equitable Remedies
To return the injured party to their original position before performance began
Status quo ante
Duty to mitigate
Breach of Contract
Material (major) Breach
Breaks the contract and gives rise to a claim for damages
Non-material (minor) Breach
Does not break the contract, but does provide a basis for incidental damages and/or offsets
Exculpatory and Limitation of Liability Clauses
People in business have wide latitude to allocate and/or limit liability. These clauses can be limited for public policy review.
The "American Rule" provides that each party pay his or her own attorney's fees.
2. Parties in contract can agree that in disputes under the contract, the loser will pay the prevailing party fees
Waiver is to give up or relinquish a right under a contract.
Mitigation of Damages
To seek to lessen damages by obtaining substitute goods.
Mitigation of damages is called "cover" in the UCC.
A party to a contract clearly repudiates his or her obligations under the contract. This is an anticipatory breach and a material breach.
Repudiation is by
Temporary Restraining Order
Elements of a Gift
Types of Gifts
Inter Vivos Gift
Gift in Causa Mortis
Joint Tenancies in Property
Joint tenancy with the right of survivorship
Tenancy in common
Tenancy by the entirety
Burdens of proof where bailed property is damage during the bailment
Types of Property
Real and Personal
Tangible - things. Tangible and moveable.
2. Choices in action - debts or claims
3. Intangible - Intellectual rights such as copyright, patent, trade mark and trade secret.
Categories of Lost Property
The process by which the ownership of unclaimed property is transferred to the state
Bailment for sole benefit of bailor
Bailment for mutual benefit
Bailment for sole benefit of bailee
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