Term
| Article II applies to what? |
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Definition
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Term
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Definition
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Goods are moveable property.
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Term
| Does Article 2 of the UCC apply to the sale of Whiteacre? |
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Definition
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No, Article of the UCC does not apply to the sale of real property.
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Term
| Can the sale of a toupee by a non-merchant to another person be goverened by Article II of the UCC? |
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Definition
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Yes. Article II of the UCC applies to the sale of goods and does not have to be a sale made by a merchant, nor does the K price matter.
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Term
| What type of Ks does the common law apply to? |
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Definition
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It applies to all Ks other than contracts that deal with the sale of goods.
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Term
| What happens when you have a K that is mixed. In other words, the K has the SOGs and the service or the sale of rela estate. How do you know which law to apply? |
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Definition
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To decide whether the CL or the UCC should apply, determine, which part of the contract is the core part. If at the core of K involves the sale of goods the UCC applies, if it is the sale of real estate the Article II applies. Core v. incidental.
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Term
| What bodies of K law does NY test on? |
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Definition
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NY K common law, Article 2 of the UCC (sale of goods) and Article 2a (lease of goods) of the UCC.
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Term
| Does Article 2a of the UCC apply to personal or commercial leases? |
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Definition
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Term
| Does Article 2a of the UCC apply to the lease of real property? |
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Definition
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No. It applies only to the lease of goods.
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Term
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Definition
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A K is a legally enforceable agreement.
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Term
| An express K is created by a party's words _______ or _______ .
An implied K is created by a party's _____. |
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Definition
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oral or written.
conduct.
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Term
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Definition
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Quasi K ios an equitable remedy that is aserted when K law prduces an unfair result, which generally results in the unjust enrichment of one party.
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Term
| Marilyn Monroe orally agrees to creat 5 music videos for MTV over the course of 5 years. After her first video bombed, MTV decided not pay Monroe. MTV argues that they do not have to pay her because she does not have a legally enforceable K. Can Monroe r |
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Definition
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MTV's assertion is true, Monroe's K is not enforceable because it is a 5 year K, which is governed by the Sof. Even though she is left without a remedy at law, she is not without a remedy. monroe may argue that equity demands that she be remunerated for her work. The law of Ks here provided an unfair result that resulted in the unjust enrichment of MTV at Monroe's expense.
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Term
| What can a P recover in quasi K? |
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Definition
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Not what the bargian price or agreed upon fee, but P may recover the reasonable value of the benefit conferred.
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Term
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Definition
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A unialteral K can only be accepted by performing.
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Term
| How can a bilateral K be accepted? |
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Definition
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Through any reasonable means, it is more flexible than a unilateral K.
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Term
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Definition
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An offr is a manifestation to b legally bound to do something, which is created by words or conduct.
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Term
| Is an advertisement an offer? |
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Definition
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The general rule is that an advertisement is not an offer. An ad can only be an offer where it expresses a quantity and who may accept. Ex: 1 dress available, for $1, first come, first served!"
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Term
| If the terms of an ad are indefinite, i that ad enforceable as a K? |
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Definition
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Term
| Is a requirements K valid if it does not state a quantity to a seller or supplier? |
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Definition
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Yes. A buyer may say that she will buy all her coffee beans from a particular merchant for 5 years at 1 per can. This would be an legally enforceable requirements K.
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Term
| Can a buyer expect a merchant to who has K to send 1,000 cans of coffee a year suddently require the seller t deliver 8,000 cans? |
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Definition
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No. A buyer may not take seller by surprise.
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Term
| 1. At CL if a K did not provide a price term was too ____________ , therefore _______ .
2. Under the UCC Article 2 if a K does not have a price the K will be ___________ because the UCC will __________ in a _________ price. The term is _________ into t |
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Definition
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1. indefinite, unenforceable
2. enforceable, fill, reasonable, read
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Term
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Definition
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An offer is dead when it lapses based on the terms in the offer or if a reasonable time has passed since the offeror presented the offer.
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Term
| I offer to sell my blue beetle to my neighbor. My offer provides that he may purchase it May 4, 2007. He comes with a money order for $7 on June 6, 2007 to purchase the vehicle. Wha ti sthe result? |
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Definition
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The offer is dead and my neighbor cannot accept the offer.
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Term
| Revocation of an offer may occur if offeree has not accpeted by the date set by the offeror or it may be revoked when there is no particular date upon which the offeree must accept, but accpetance is too remote. Can the offeror revoke? How? |
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Definition
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An offeror can revoke an offer. He may do so directly or indirectly.
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Term
| What is is deemed direct and indirect revocation of an offer? |
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Definition
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A direct revocation by an offeror is one that is unambiguous and directly stated to the offeree indicating that he has changed his mind. An indirect revocation of an offer is one that is unambigously expressed through his conduct AND such conduct is made apparent to the offeree.
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Term
| Generally an offeror may revoke an offer at any time before acceptance. There are four situations, however, where a offeror may not revoke. What are they? |
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Definition
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Offeror can revoke at any time before the offer is accepted, except in 4 circumstances: 1. option K where there is consideration, 2. Reasonably foreseeable reliance (generally deals with subctractor /contractor relationship), 3. On th MBE, when a offeree begins work on unilateral K, not eht atin NY a offeror can revoke all the way until completon because in NY a offeree has not accepted until he has completed his obligation under the agreement. 4. A firm offer by a merchant under Art. 2 : signed wirting by the merchant--cannot revoke even without consideration.
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Term
| Under the UCC Art. 2, hw long is a firm open held open? |
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Definition
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Term
| Is every signed written offer by a merchant a firm offer that requires a merchant to keep the offer open for a particular/reasonable amount of time? |
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Definition
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No. The writign must include a promise to keep the option to open (not to revoke), if not it is not a firm offer under th Art. 2 of the UCC.
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Term
| Under CL, can an offer to sell real property be revoked even if there is a promise not to revoke for a particular time? |
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Definition
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Under CL, there is no obligation for the offeror to keep an offer open unless there is consideration. there is no firm offer here because that applies to a SODs under Art. 2, which does not require consideration.
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Term
| In NY, can a signed written offer to not revoke an offer to sell real property be enforceable without consideration. |
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Definition
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NY, differs from the CL. NY, does not require consideration for an offer to sell real property to remain open to the agreed time of the option.
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Term
| Under what circumstances does an offeree's conduct equate to the rejection of an offer? |
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Definition
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1. When the offeree makes a counter offer, the offer is no longe ron the table. Bargaining, however, does not constitute a counteroffer (question, will you take... that is bargaining v. I will only pay... that is a counteroffer).
2. When an offeree makes a conditional offer that acts as a rejection of the offer....conditions negate the offer.Therefore, I accept as long as... is a rejection.
3. An acceptance containing additioanl terms operates as a rejection under CL (known as the mirror image rule)... under Art. 2 this is not a rejection, however.
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Term
| Under Article II of the UCC, if terms are added to an original offer that is accepted, they become part of the K only when.... |
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Definition
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1. Both parties are merchants
2. The term is not a material change
AND
3. The offeror does not object w/in a reasonable time.
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Term
| hat is considered a material cahnge in te context of an accepted offer under Article II of the UCC? |
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Definition
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A material change is a change that would caus the offeror hardship or surprise. A changed term, however, tha ti sconsidered a custom in the industry will not be considered a materil alteration to the offer.
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Term
| If an offeror does not want any change to the offer wha ti sthe easie thing he can do? |
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Definition
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The offeror can make a prompt rejection of the amendment of the K.
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Term
| Does the death of either party before an offer has been accepted prevent the other from accepting the offer? Is there an exception? |
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Definition
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Yes. Yes, the exception to this rle is if the offeree gave consideration for the option to stay open then the offeroo may accept the offer, even if the offeror has dies durig the option period.
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Term
| Can the offer control the manner of cceptance? |
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Definition
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It can, but usually does not.
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Term
| If the offeror says Paint my house and I will give you $ 10,000, and the painter say I accept, will it be a breach of K if the painter never paints the house? |
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Definition
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Yes because a promise suffices here. If the language by the offeror was you can accept this offer only by painting my house. Then accepting it verbally will not suffice. Here, performance is acceptance.
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Term
| Is start of performance equate to accpetance in a bilateral contract?
Is start of performance in a unilateral K acceptance? |
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Definition
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Term
| If X says to painter paint my houe and I will give you 10k, and the painter does not respond, but begins to paint, has he officially accepted? |
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Definition
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Yes. Starting the job is am implied promise in a bilateral K to finish the job.
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Term
| Can improper performance constitute acceptance? |
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Definition
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Yes. If I offer BK Painting 10k to paint my house white and he paints my house maroon has he has accepted my offer and now I may sue him for breaching the K.
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Term
| I order limp bizkit CD from CD retailer. They send me a LL Cool J CD, hve they accepted my offer? |
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Definition
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Yes and they breached. Theri performance is acceptance, even though it was improper. Their performance, nonetheless allows me to recover for the breach of the K.
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Term
| Under Article II of the UCC, if the offeree supplies the offeror with something similar, but not exactly what the offerror ordered is there anyway the offeree can avoid breach? |
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Definition
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Yes. The merchant may in response to the order send another product that was not ordered by the offeror and place a note with the product saying this product is an accomodation, which I hope meets your needs. This is not an acceptance, but rather a counteroffer. Therefore, there is no breach.
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Term
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Definition
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Silence cannot be acceptance when it is thrusted upon the offeree by the offeror. For example, the following is not acceptance, I leave a note in your mailbox, "I offer you my car for $8,000, I ill assume that you have accepted if I do not hear from you by 6 p.m. tonight.
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Term
| When is acceptance effective by mail? |
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Definition
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The offeree's acceptance of an offer is irrevocable once it has been mailed.
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Term
| When will a offeror's revocation of its offer be revocable by mail? |
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Definition
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It will be revocable by mail providing that the oferee receives it before the oferee has mailed his acceptance.
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Term
| What happens if an offeree's acceptance by mail gets lost, how does that affect the acceptance? |
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Definition
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It does not affect the acceptance, it is still a valid acceptance.
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Term
| The offer, however, can specify when the offer must be recived in order to be accepted. Therefore, if a offeror tells the offeree that his accetance must be received by May 4th, when does the offeree have to mail it in order for it to be a valid acceptan |
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Definition
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A valid accpetance will only be recognized if received on 5/4 irrespective of when it was mailed. Therefore, the mailbox rule may be altered by the express condition of the offer.
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Term
| In the context of the mailbox rule, what happens when an offeree accepts and the subsequently rejects. |
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Definition
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The acceptance controls unless the rejection gets to the offeror first and the offeree relies on it.
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Term
| To clarify some rules:
1. Acceptance and then rejection: wha tis the rule
2. Rejection, then acceptance, what is the rule? |
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Definition
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1. The mailbox rule applies, meaning the offere has accepted, unless the rejection gets to the offerror first and he reasonably relies on the rejection.
2. When a rejection is sent, and then an acceptance follows.... which ever gets there first controls.
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Term
| What should I look for to see whether the offer was terminated? |
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Definition
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1. lapsed: stated time or reasonable time has passed 2. Revocation by offeror, 3. Rejection by offeree, 4. Death of one party before acceptabce (option may save though).
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Term
| What are the defenses aagainst the formation of K? |
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Definition
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1. Under 18 (infancy), intoxicated or mentally incompetant.
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Term
| What does a D have the right to do if he enters a K? |
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Definition
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He has the right to disaffirm the K: to avoid it.
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Term
| If Jenna enter a K to buy Joe's firebird formula for 13K can she disaffirm the K if she is 17, but tells Joe that she is 19? |
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Definition
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Yes. she may disaffirm. all tha tmatters is the age of the purchaser at the time of the sale.
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Term
| Can an incapacitate person affrm a K ever? |
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Definition
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Yes. An incapacitated person impliedly affirms a K if he retains the benefit of the K without complaint after regaining or gaining capacity.
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Term
| Can Joey, a 44 year-old guy, who contracts with Ralph , 17, to sell his motorcycle disaffirm the K because of his age? |
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Definition
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No. We only care about the capacity of the minor. Joey has full capacity and therefore, is bound to his end of the K.
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Term
| Are incapacitated people iable for K they enter for necessaries (food, shelter, clothing, medical care)? |
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Definition
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Yes, they are, but not under K, but rather the equitable theory of quasi K. This means that there will be some remuneration to theperson who Ks with the incapacitaed person. The remuneration for the necessary, will not be necessarily the K price, but wil be limited to reaonable value.
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Term
| What are the defenses to contract formation? (10) |
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Definition
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1. Incapacity (age, mental, intoxicated)
2. Duress
3. Misrepresentation/Disclosure about a material fact
4. Amguity of a Term
5.Mistake about a material fact
6. Lack of consideration
7. Illegality
8. Public Policy
9. SOF
10. Unconscionability
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Term
| What are the defenses to contract formation? (10) |
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Definition
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1. Incapacity (age, mental, intoxicated)
2. Duress
3. Misrepresentation/Disclosure about a material fact
4. Amguity of a Term
5.Mistake about a material fact
6. Lack of consideration
7. Illegality
8. Public Policy
9. SOF
10. Unconscionability
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Term
| What does it mean to say that a K was made de to economic duress? |
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Definition
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A K is may be considered unenforceable due to economic duress when (1) a threat to break existing K unless they receive a better deal. (2) The other party agrees because they need to get the initial deal done. (3) There are no reasonable alternatives for the buyer who is subject to duress.
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Term
| What are the two types of duress? |
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Definition
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1. physical and 2. financial
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Term
| You are taking a stroll in NYC. It begins to rain. You turn and see that there is a umbrella stand. Yesterday, the unbrellas wer $3. You run over to the stand and find tha tthe umbrellas are now $ 15. Can you argue financial duress? |
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Definition
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No. You had the option to buy an umbrella somewhere else if you did not want to pay that price.
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Term
| When does a ambiguity of a term undo a K? |
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Definition
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When the ambiguity is such tha there as no meeting of the minds. The ambiguity in the term must be material.
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Term
| Wha tis the result when there is an ambiguus term, but ne party has reason to be know of the ambguity? |
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Definition
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The K will be binding with the innocent party's mening governing.
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Term
| If A asks the seller of a home is your foundation in condition? And the seller replies of course, and reasonably believes it... is buyer bound to a K if he finds out tha tthe foundation is in fact in poor repair? |
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Definition
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Buyer not bound. K may be undone even for honest misrepresentation, especially when it is material
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Term
| If A & B contract for the sale of a painting by Monet, but before performance they find out that it is a fake, is the K enforceable?
What if it is a Monet, but both parties believe it is orth 2 million, and not 1.5 million, which it is actually worth? |
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Definition
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1. Unenforceable: material fact.
2. Enforceable: mistakes about market value not material fact.
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Term
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Definition
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Bargained for legal detrimnet and benefit.
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Term
| Consideration can take the form of |
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Definition
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promise, forebearance or performance.
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Term
| Is a seller promise to sell consideration for buyer's promise to buy? |
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Definition
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This is a promise for a promise, which is considered valid consideration.
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Term
| Is past consideration, consideration? |
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Definition
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No. Past consideration is not consideration at all.
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Term
| Simon helps Jen move into a her new apartment. Later she offers Simon $300 for helping her move. Jen refuses to pay. Was there consideration on simon's part? |
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Definition
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No. Simon already performed. There was no valid consideration here because services rendered already occured. There was no bargained for exchange. There was a promise to pay, but nothin in return.
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Term
| Is consideration in exchange for past consideration ever binding in NY? |
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Definition
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Yes. Even thought he general rule, and the MBE rule is that past consideraiton is no consideration at all... past consideration that is expressly stated in a signed writing and can be proven is enforceable in NY.
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Term
| When is consideration considered adequate? |
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Definition
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The adequacy of consideration is irrelevant provided that there is a bargian for exchange.
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Term
| When there is a prexisting duty what is the rule regarding consideration? |
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Definition
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When someone has already contracted to do something, for example clean your house and they K to clean it for 50 dollars. When they arrive if they demand 70 to clean the house without providing additional services the 20 dollars extr sould not be paid. There is noextra consideration here. The person has to provide consideration for the adidtional 20 dollars.... like clean a closet or something without additional consideration the 70 is not enforceable. Cleaner doing only what was promised to be done @50.
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Term
| Under the MBE, the pre-existing duty rule requires additional consideration where there is pre-existing duty... in NY, can there be lack of consideration on one side of the deal? |
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Definition
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In NY, where there is a pre-existing duty to perform, and one party wants more out of the bargain, but does not want to give additional consideration, such a bargain can be validated if it is expresse din a signed writing.So bascally where there is a modification (signed writing) the pre-existing duty rule is not applicable.
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Term
| Can the pre-existing duty rule be raised as a defense by a third party? |
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Definition
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No. Must be in prvity of K.
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Term
| Does Article II require consideration for modifications to a pre-existing duty or agreement? |
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Definition
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Under Article II there si no pre-existing duty rule. A party does not have to provide additional consideration to modify a K. The party must show good faith, however.
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Term
| If you have a credit card debt that is due and undisputed. If you settle for 2k when you owe 2,500 is your payment of 2k considered your consideration? Can Visa sue for thr 500? |
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Definition
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No, not consideration on your part. Visa can come after you for the rest. You owed the 2500... no real consideration given.
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Term
| If you have another credit card and they say you owe 2500, but ou dispute it... if you pay 2k just to be done with it.... have you given coonsideration? |
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Definition
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Yes. Here there is consideration when the 2k is given because the amount was in dispute.
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Term
| Is a written promise to pay a debt that is barred by S/L enforceable even w/o consideration? |
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Definition
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Yes both in NY and MBE. The written promise becomes the consideration.
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Term
| When is promissry estoppel used? Check this card.... |
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Definition
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Promissory estoppel is used when there is a promise, but no consideration is given in return and there is forseeable/detrimental relaince on this promise: for example, charitable gift. Dpnor promises to give a gift to church... the church in anticipation of the promise of donation begins to build anew wing. The donor is estopped from revoking promise to donate.
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Term
| LL promises T that he will renew his lease next month when it is supposed to teminate. T paints the aprtment and orders custom blinds. The following month the LL does not renew the lease. |
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Definition
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Ordinarily here there would be no K because there is no consideration or bargain it is just a promise to the T to do something, nothing in exchange. But because the promise was detrimentally relied upon, and its relaince was forseeable T may enforce the LL's promise on the grounds of promissory estoppel.
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Term
| If the subject matter of a K is illegal, can there ever be a breach of K claim? |
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Definition
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Term
| If an assasin buys a ticket from a Southwest Airlines and the purpose of her trip is to kill the Tonkamaru Ambasador, can Southwest recover from the assain for breach of K if she decides not to pay for that ticket? |
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Definition
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Yes. Here, even though the purpose of the K was to further an illegal ctivity, SW, presumably is unaware of the assain's objectives. If it did n=know then that K would be unenforceable.
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Term
| When will a court narrow or invalidate a covenant not to compete? |
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Definition
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A covenant not to compete will be narrowed or invalidated when either it scope, meaning geography of longevity is unreasonable. Here the court must balance freedom of K v. restraints on trade.
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Term
| In NY, in determining whether restricitve covenant is enforceable the court will look to the necessity of the covenant not to compete. What is the main criteria to uphold such a covenant? |
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Definition
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Generally, in NY, covenants obvusly have to be resonble n scope, but also looking to whether the vcovenant is a necessity. For example, to place a covenant to not compete in a K with a busboy seems ridiculous: theri services are not unique. In contrast, to require in a K that your chef does not work in NYC for 90 days may be deemed more resonable because the chef's talents are considered unique in general, and even unique to that restaraunt.
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Term
| Exculptory clauses can eliminate liability for __________ , but not for _____________ or _____________. |
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Definition
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negligence, but not for gross negligence or intnetional torts.
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Term
| A builder Ks to remodel a home. In the K with the homeowners, it provides that builder will not e responsible for the negligence of its employees. Is this permissible? |
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Definition
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Yes. Partles may K away liability for negligence. HEre, however, the builder would be vicariously for any gross negligence or intentional torts committed by his employees.
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Term
| To say K is unconscionble you must look for _____________ and _______________ at _________ . ___________________ later on is ______________ . |
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Definition
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oppressive terms and unfair surprise t teht time of the making of the K. Perceived harshness later on is irrelevant in terms of unconscionability.
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Term
| What does it mean for a K to be substantively unconscionable? |
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Definition
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It means for the substance of the K to be oppressive.
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Term
| What does it men for a K to be propcedurally unconscionable? |
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Definition
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It means for the K to be proceduarally oppressive: meaning there was fine print, legalese or unequal bargaining power.
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Term
| What re some eamples of procedural unconscionability? |
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Definition
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fine print, legalese, unfair bargaining power.
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Term
| What are the 10 defenses against formation of Ks? |
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Definition
|
1. Illegal
2. Unconscionable (P and S)
3. Misrepresentation
4. Incapacity
5. Lack of consideration
6. Nondisclosure
7. Public Policy
8. Duress
9. Ambiguity
10. Mutual Mistake
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Term
| What three questions must I ask myself when a SOF defense is raised? (W.S.E) |
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Definition
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1. Is a writing required?
2. Is the writing satisfactory?
3. If you don;t have a writing is ther ean exception?
Writing? satisfactory? Exception?
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Term
| Does the transfer of an interest in real estate have to be in writing? |
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Definition
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Term
| Must easements be in writing? |
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Definition
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Yes, easments fall under the SOFs.
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Term
| Homeowner alleges that a builder agreed to install a fence around the parameter of his land. Does this K have to be in writing? |
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Definition
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No. Not subject to the SOFs.
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Term
| Does a one year lease subject to the SOFs? |
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Definition
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No. Leases one year or less do not have to be in writing.
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Term
| Is a service agreement that cannot be fully performed within a year have to be evidenced by a writing? |
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Definition
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Yes. You have to look at what could have happened, not what would have happened. Therefore, if it is plausible tha tthe K could not be performed within a year it is subject to teh SOFs and must be in writing.
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Term
| Do specific tasks in a K have to be evidenced by a writing because they are subject to the SOFs? |
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Definition
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No. A specific task like cutting down all the trees on my property could take more than one year, but also could be accomplished in one year if a crew of 20 guys were hired. Therefore it is not subject tot he SOFs.
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Term
| What is Woody Wood Pecker Ks to chop down all the trees in my yard: there are 800 trees. Does this K have to be in writing? What if Woody Wood Pecker ook a year and a half to perform? |
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Definition
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The rule is that you do not consider what happened to decide whether a K can be fulfilled within one year when the task is specific. Even though WWP did not finish within the year it is posible tha the could have finished it in 2 mos with the appropriae help. Look at the time of the Ks making, not at the conduct or lack thereof.
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Term
| Do lifetime Ks fall within the SOFs for purposes of the MBE? How about N.Y.? |
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Definition
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Under the MBE, lifetime Ks do ot have to be in writing. The person may die tomorrow. In NY, however, lifetime Ks must be in writing.
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Term
| If I K to employ Angelina Jolie to be my nanny for three years, is this K subject to the SOF? |
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Definition
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Yes, because there is a specific time agreed to here that exceeds one year. There is clearly no way based on the agreed terms of the K tha tthis K can be performed within one year.
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Term
| If I K to employ Eva Mendes to my housekeeper for one year beginning tomorrow, is that agreement subject to the SOFs? |
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Definition
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Yes. Even though the K can be fulfilled within a year to evade SOFs. Here the K begins to run on formation of the K not on the specified dates of employemnt. Therefore, from the time of the agreement, until the time her employment ends, it would be more than one year, thus subject to the SOFs.
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Term
| I K with Justin Timberlake to sing at a party for Jen on Decemeber 2008. He Ks to sng for 3 hours at a price of $15,000. The date we agree is on May 2007. Must this K be in writing? |
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Definition
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Yes it is subject tot he SOFs because from the time of the making of the K until the date of performance is longer than one year. The fact that his performance will only take 3 hours is irrelevant.
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Term
| Under Article 2 of the UCC, does a SOGs have to be in writing if it is $500 or more? |
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Definition
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Term
| Hillary Clinton agrees to purchase 500 posters of Monica Lewinsky, at $2 per poster, from a photo shop provided that they affix a red target on her face. Is this sale subject to the SOFs? |
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Definition
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Yes, under Article 2 of the UCC a SOGs that is $500 or more must be in wiritng.
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Term
| Doe a lease of goods have to be in writing if they are for $500 or more? |
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Definition
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No. Under UCC Article 2A, a lease of goods has to be $1000 or more to be in writing.
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Term
| Rent-A-Center argues that I orally agreed to rent a 60" flat screen tv, a apple lap top, 2 sofas, a dining set, and a Harley Davidson from them for one year. My lease payments were $975 per month. Is this agreement enforceable. |
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Definition
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This is a K for a lease of goods, which in NY is subject to Article 2A of the UCC. The UCC requires leased goods that exceed $1000 to be in writing. Here, the fact that the monthly payment is $975 does not evade the SOFs. The terms of the alleged agreement is that I will pay $975 for a period of a year, which exceeds $1000, and therefore must be in writing.
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Term
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Definition
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It is a promise to answer the debt of another.
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Term
| Is the following statement by Cole subject to the SOFs: Lance contracts with Joe for him to plant grass seed in his yard for $800. Cole chimes in, "If Lance does not pay you, I will." |
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Definition
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Cole's statement is subject to SOF because he is acting as a surety... his guarantee to pay on the loan will only be enforceable if it is in writing.
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Term
| Painter approaches Lance regarding painting his house. no K is formed. Cole chimes in and says, "Paint Lance's house and we will pay you $900." Is Cole's agreement with the painter subject to the SOFs? |
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Definition
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No. Here Cole is not acting as a surety, but is making himself directly liable so you evaluate it as a regular K.
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Term
| Is the statement by an estate represntative to use her own funds to pay estate taxes subject to the SOFs? |
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Definition
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Term
| Is the promise to mrry subject to the SOFs? |
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Definition
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Term
| Do post-nuptial and pre-nuptial agreements fall within the SOFs? |
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Definition
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Term
| Does an oral agreement to marry someone fall within the SOF? |
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Definition
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Term
| What are some special situations in NY that fall into the SOFs? |
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Definition
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1. Assignment of an insurance policy, promise to pay a discharged debt, agreement to pay a finder's fee or broker's commission, except to an attorney, auctioneer or real estate agent.
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Term
| When does a modification to a K have to be in writing as per the SOFs? |
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Definition
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A modification to a K is only subject to SOFs if the K as modified would be subject to the SOFs irrespective of the whether the K was subject to the SOFs initially.
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Term
| Does Article 2, governing the SOGs, allow for prvate parties to contractually create a writing requirement even when the SOF does not apply? |
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Definition
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Term
| Under CL, can oral modificaitons to a K be prhibited? |
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Definition
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No. ORal modifications are permissible.
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Term
| Under Article 2 what writing will suffice when a sale is subject to SOFs ($500 or more)? |
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Definition
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The writing must contain a quantity term and signed by the D. No stated price is required.
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Term
| What is requred in a writing subject to SOFs when there is a lease of goods? |
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Definition
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The wirting must indicate that it is a lease. It must also state the quantitiy of items being leased, the term, the rentl payment and be signed by the D.
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Term
| What must be in writing to meet SOF when the writing does not deal with the sale of goods or the lease of goods? |
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Definition
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The writng must contain material terms (who & what) and be signed by the D.
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Term
| Can a writing that is not signed by the D ever pass muster in terms of satisfying the SOFs? |
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Definition
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No. D' signature must always be on the writing in order for the writing to be used against him if a writing is required under the SOFs.
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Term
| When dealing with real estate, the SOFs writing requirment may be excused when 2/3 requirements are met. What are they? |
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Definition
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1. Some payment, 2. buyer makes permanent improvement to the land, and 3. buyer is in possession. If 2/3 of these requirements are met it is considered part performance, which in the context of real estate obviates the requiremnt for the agreement to be in writing as per the SOFs.
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Term
| If Nicole works for Reed Smith for two years under an oral agreement that she will be paid $600,000 at the end of those two years, does this agreemnt have to be in writing, and if so is it barred by the SOF? |
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Definition
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Gnerally, service Ks need to be in writing if they speicify a time parameter that exceeds one year. In this case, however, the SOFs will not bar Nicole's COA because she has lready completed the work as agreed. She obviously will still have the burden to show that an oral agreement existed. Here full performace eliminates the need for a writing.
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Term
| If a writing is required under the SOFs, but there is complete performance the need for a writing may be waived and the SOF will not bar the P from trying to proceed with COA, wha tif there is partial performance? |
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Definition
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Partial perfomance is not enough to obviate the need for a writing.
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Term
| If someone made an oral agreement to work for a company for 2 years and then is fired after only two months, how can the employee recover? |
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Definition
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This K should have been in writing as per the SOFs therefore it is barred in law for recovery. In equity, however, P may be able to recovery under quasi K for the benefit conferred to the employer fro the two months of work.
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Term
| If a K for the SOGs is subject to a SOFs, but it partially performed, can seller recover for goods accepted? |
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Definition
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No. Buyer must pay for them SOFs will not bar recovery.
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Term
| When a good is custom made and cannot be sold to another buyer, can the SOF bar recovery? |
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Definition
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Term
| Wha tis a merchant's confirmatory memo? For a confirmatory memo to be effective in obviating the SOFs, what three elements must be satisfied? |
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Definition
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It is a merchant's own writing that can be used against the other merchant when there is no writing, but should have been.
Three elemtns:
1. Both parties must be merchants
2. The writing must claim tha tthere was a prior oral agreement
3. The recipient does not object to the writing in writing within 10 days.
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Term
| Why are confirmatory memos allowed to obviate the SOFs? |
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Definition
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Because merchants frequently agree to some transaction on the phone, and then one party generally floows-up the conversation with written memo. So the confirmatory memo allows, under Artice II of the UCC, to satisfy the SOFs requirement.
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Term
| If a surety makes a proise that will benefit himself deos the promise have to be in writing? On the MBE? On NY? |
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Definition
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In NY a surety agreement must lways be in writing. On the MBE surety agreements generally do have to be in writing, but when the surety makes a promise with the main purpose being for his own benefit, then the promise is not subject to the SOFs and does not have to be in wiritng to be enforceable.
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Term
| If a person enters a K on hbehalf of another person, and the underlying K falls within the SOFs, the third party is required to have written authorization. Wha tis this rule? |
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Definition
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This rule is the Equal Dignities Rule. Applies to agents.
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Term
| Generally pseaking, what 5 contracts re within the SOFs, mening must be in writing? |
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Definition
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1. Interests in real Estate
2. Service contracts that are greater than one year.
3. Sale of goods for $500 or more
4. Lease of Goods for $1000 or more
5. Suretyship
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Term
| What type of law is the Equal Dignities rule? |
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Definition
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A rule property rule providing that n agent must have authority in writing to enter a K for a property tranaction that exceeds a year.
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Term
| What is the Parole Evidence Rule? |
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Definition
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The Parole Evidence Rule says that we should keep out evidence of a prior oral or written agrrement that contradicts a later writing.
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Term
| What is the policy behind the Parole Evidence Rule? |
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Definition
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We believe that writings later in time are more reliable.
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Term
| When a party seels reformation of a K, what is that? |
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Definition
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reformation means to re-write a K.
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Term
| If a hypo on the bar involves an oral agreement, which of he two do not apply, and why? SOFs or Parole Evdence Rule? |
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Definition
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The Parole Evidence Rule because it requires a writing.
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Term
| What are the exceptions to the parole evidence rule? |
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Definition
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1. To correct a clerical error
2. to establish a defense against formationof the K
3. To explain a vague or ambiguous term in the K.
4. To supplement a partially integrated writing: eaning the writing is incomplete on its face.
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Term
| When a party seeks rescission from a K because of a misrepresntation may parole evidence be used? |
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Definition
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Yes. When a party seeks to get out of a K because of a misrepresentation statements made to the P may be introduced.
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Term
| May a party introduce parole evidence to clarify a term ina K? |
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Definition
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Yes, ambiguous terms my be clarifed with parole evidence. this is limited, however, because couts generally give words their plain meaning. Thus, a party cannot say well, black really meant white in this K.
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Term
| What is a merger clause and wha tis its effect? |
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Definition
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"This contract is limited to the terms herein." merger clause is evidence tha tthe K should not be supplemented by extrinsic evidence in terms of arguing that there are other terms that are not in the K that should be....
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Term
| Does the Parole Evidence Rule apply to agreed upon terms that occur after the writing is signed? |
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Definition
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No. the Parile Evidence Rule only apples to the terms in the written K. If there are additional terms agreed to after the signing of the K, thise terms may be proved with extrinsic evidence without violating the Parole Evidence Rule, because it simply does not apply to this situation. There maybe, however, issues regarding additional consideration or SOF problems if the modificationor additional agreed to terms are not in writing.
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Term
| May conduct be used to fill in gaps in a K or to explain terms in a K? What conduct is used? |
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Definition
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Yes.
The most importnt type of conduct to construe terms of an ambiguus or incomplete K is to look at the conduct of the parties to the K ths far. How have they behaved? This is known as the course of performance.
The Court may also look to the course of dealings. Meaning the court will look to conduct between the parties in Ks performed before this one.
Finally, the Court may look to usage of trade: what do others in the trade do under similar Ks.
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Term
| seller is always liable to a purchaser for breach of K when the seller expressly warranties its goods. What are considered express warranties? |
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Definition
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Express warranties are statements of fact, promises and descriptions of the goods.
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Term
| What are not considered express warranties in the context of the UCC Article 2 SOGs? |
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Definition
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Mere expressions of opinion, vague and subjective statements.
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Term
| Which of the following are statements of an express warranty: This podium is mahogany, This computer is guaranteed for 2 yrs., All parts are top quality, seller's use of a model or sample. |
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Definition
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This podium is mahogany is a statmenet of fact therefore of a seller ere to say that to a buyer that would be considered an express warranty. The computer is guaranteed for 2 years. This is an express warranty because it is a promise made to buyer by a seller. If a seller were to say this mchine is made with all top quality parts this is NOT an express guarantee because the statement is too vague and also seems to be subject to opinion. When a seller uses a model or a sample for a consumer to look at it of try, that model is an express warranty because the cutomer reasonably believes tha the model is what he is getting.
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Term
| What must be present fr an express warranty to be actionable in the context of the SOGs under UCC Article II? |
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Definition
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What must be present is the fact tha tthe express warranty was the basis of the bargain, meaning the seller used te warranty to induce the buyer to buy or the buyer reasonably relied on the express warranty in deciding to purchase the good.
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Term
| What is an implied warranty of merchantability? when does a merchant make animplied warranty of merchantability? |
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Definition
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1.It means that goods are fit for their ordinary purpose.
2. When that merchant deals specifically in that product, thus projecting to the community that he has a special knowledge about tha tparticular good.
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Term
| When foot Locker sells me one of their vans that delivers shoes, is there an implied warranty of merchantability? |
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Definition
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No. If nothing is said about the van's quality no implied warranty of merchantibility may be assumed. Foot Locker is a merchant of sneakers, not vans. There is an implied warranty of merchantability when they sell their sneakers though.
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Term
| What is an implied warranty for fitness for a particular use? |
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Definition
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The goods are fit for the buyer's particular purpose.
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Term
| In problems dealing with an implied warranty of fitness for a special purpose, does a merchant have to deal in that particular good only? |
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Definition
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No. that requirement si only applicable for implied warranties of merchantabiliity.
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Term
| In order for a seller to breach his implied warranty of fitness for a particular purpose, what must transpire? |
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Definition
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The buyer hs to have a special purpose in mind when buying the good, the buyer has to rely on the seller to select a suitable good, the seller knows both of these fats.
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Term
| Does the UCC Article 2A, Lease of Goods provide the same implied warranty of merchntability as the SOGs, Article II? |
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Definition
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Term
| If I lease a computer from Citibank, which was purchased from Gateway, does an implied warranty of merchantability apply to this lease under UCC Article 2A? |
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Definition
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No. This is finance lease, which does not have an implied warranty of merchantability. Here, Citibank is not in the business of leasing computers.
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Term
| Can a seller of leased goods and goods disclaim implied and express warranties? |
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Definition
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Sellers may only disclaim implied warranties, but not express ones.
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Term
| What happens if a K says that all computers are guaranteed for two years, but later in the K the K disclaims all warranties? |
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Definition
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The express warranty survives.
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Term
| When a seller makes no express warranties and sells the goods or lease "as is" or "with all faults," wha tis the seller doing? |
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Definition
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Disclaiming all implied warranties, which is permissible.
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Term
| What are the two elements to disclaim implied warranties? |
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Definition
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There needs needs to express language that is conspicuous. There is no magic words.
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Term
| A seller may limit a buyer's remedies for breach of any warranty, implied or express, if the limitation is not unconscionable. What type of limitation in a K for the sale of consumer goods is presumed unconscionable? |
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Definition
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a limit on buyer's remedy for personal injuries caused by the good.
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Term
| When a seller ships goods to the buyer and the goods are destroyed, and the destruction was not caused by either the seller or buyer, who bears the risk of loss? |
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Definition
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1. Look to K for terms regarding risk of loss.
2. If the K is silent re: the risk of loss, any tyoe of breach of the K, no matter how nominal, and no matter that the breach is not related to the loss, that party is responsible for the loss.
3. If neither of the parties breached, and the goods that are destroyed are sent via common carrier (UPS, FedEx, Freight Co.) the risk of loss shifts to the buyeronce the seller completes its shipping obligations. (distinguish: shipment K v. Destination K).
4. Non-carrier cases: buyer is to pick-up, seller is to deliver: If the seller is a merchant the seller bears the risk of loss of the goods until the buyer takes poss | |
