Term
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Definition
| The concept that there is a defense to a contract unless the parties' consent is both real and voluntary |
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Term
| Five types of situations where the lack of reality of consent is present: |
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Definition
1.Mutual mistake of material fact
2. material misrepresentation
3. duress
4. undue influence
5. unconscionability |
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Term
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Definition
| the court-ordered cancellation of a contract |
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Term
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Definition
| is the court-ordered revision of a contract to correct a mistake in reducing it to writing. |
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Term
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Definition
| the writer misunderstands or improperly records the deal of the contracting parties so that the writing does not reflect the parties agreement. This would result in the court revising a contract to conform it to the actual agreement through the reformation order |
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Term
| Types of mistakes of material fact |
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Definition
1. Mutual Mistake or Bilateral mistake
2. Unilateral Mistake |
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Term
| Mutual Mistake or Bilateral Mistake |
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Definition
| a mistake of fact by both parties to the contract |
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Term
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Definition
| is a mistake by only one party to the contract |
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Term
| 3 requirements for proving mutual mistake |
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Definition
1. must be a mistake by both parties to the transaction
2. the mistake must be material
3. mistake must be true mistake of fact |
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Term
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Definition
| Important to the subject matter at hand |
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Term
| requirements to prove unilateral Mistake |
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Definition
1. there was a mistake of material fact by one party to the contract
2. the non-mistaken party must be aware of the mistake |
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Term
| Material Misrepresentation |
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Definition
1. innocent misrepresentation
2. Negligent Misrepresentation
3. Fraudulent Misrepresentation |
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Term
| Innocent Misrepresentation |
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Definition
is misrepresentation without fault.
Example: I have no reason to believe that the odometer on my car was ever rolled back, and i tell you that the 30,000 odometer mileage is accurate, i am guilty of only ________ |
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Term
| Negligent Misrepresentation |
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Definition
| Occurs when a party makes a statement without exercising due care to ensure that the statement is true |
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Term
| Fraudulent Misrepresentation |
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Definition
| is a false statement of fact, made with the intent to deceive, reasonably relied on and causing damages |
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Term
| Two ways Fraudulent Misrep can occur |
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Definition
Fraud in the execution- is lying about the nature of a document in order to obtain a person's signature (void contract)
Fraud in the inducement- involves a misrep as to the understood subject matter of the contract |
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Term
| Plaintiff must prove four elements for fraudulent misrep |
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Definition
1. the plaintiff must prove a misrepresentation of material fact (A-C = Confidential relationship, Superior knowledge, concealment)
2.The intent to deceive the defendant
3.Reliance element (plaintiff had reason to rely on the defendant)
4. Causation Element: the plaintiff seeking monetary recovery must show that the misrep caused damages |
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Term
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Definition
| Forcing a party into a contract through fear or wrongful threats |
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Term
| 4 elements to prove lack of reality of consent to a contract because of DURESS |
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Definition
1. the defendant must have threatened te plaintiff in a serious way
2. the treat must be wrongfully or unlawfully made
3. the threat must cause involuntary acceptance by the threatened party
4. the acceptance must be made because the circumstances permit no alternatives |
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Term
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Definition
| is the abuse of a position of trust to take advantage of a person who lacks freedom of will because of the trusting relationship |
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Term
| 3 elements to prove undue influence |
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Definition
1. there must be a confidential, family or trust relationship between the parties
2. the weaker party must lack free will because of the influence of the stronger party
3. a contract (or gift) must result between the parties |
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Term
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Definition
| is a defense which allows a person to avoid a contract if he/she was pressured into accepting the terms of the contract and it is grossly unfair |
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Term
| 3 elements to prove unconscionability |
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Definition
1. there must be unequal bargaining power between the parties to the transaction
2. There must be a contract of adhesion ( Contract of adhesion is a contract in which the terms are dictated by the stronger party, with no real negotiation allowed)
3. the terms of the contract must be manifestly unfair or oppressive. |
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