Term
| A lender who makes a loan at an interest rate above the lawful maximum commits usury. |
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Definition
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Term
| Covenant not to compete 273 |
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Definition
| A covenant not to compete is created when a seller agrees not to open a new store in a certain geographinc area surrounding the existing store. If subordinate to |
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Term
Unconscionable Contract(277)
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Definition
| This is a contract or clause that is void for reasons of public policy. Bargains are seen as unconscionable because they are so unscrupulous or grossly unfair as to be "void of conscience. |
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Term
| Proceudual Unconscionability |
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Definition
Occurs if a contract is entered into, or a term becomes part of a contract because the other party is not knowledgeable of the term or contract.
Example- inconspuicuous print, unintelligible language lack of time to carefully read contract. |
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Term
| Substantive Unconscionability 279 |
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Definition
| Exist when the contract or one of its terms is oppressive or overly harsh. |
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Term
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Definition
In certain circumsgtances, contract law allows a contract to avoided on the basis of mistake.
Mistake of fact and Mistake of value of quality. |
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Term
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Definition
Allow contract to be cancelled
Bilateral - mistake is made by both of the contracting partys.
Unilateral: mistake made by one party |
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Term
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Definition
| Contract if enforceable by either party, it concerns the future market value or quality of the object of the contract and is bilateral or unilateral |
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Term
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Definition
| Bilateral mutual mistake whe both parties are mistaken as to an an existing material fact. |
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Term
| Fraudulent Misrepresentation(290) |
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Definition
refers only to misrepresentation that is conciously fase and is intended to mislead another.
Misrepresentation of Material Fact.
Intent to Deceive.
Reliance on Misrepresentation.
Injury to the Innocent Party. |
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Term
| Justifiable Reliance(294) |
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Definition
| the deceived party must have a justifiable reason for relying on the misrepresentation, and misrep must be important factor for party to enter contract. |
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Term
| Nonfraudulent Misrepresentation |
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Definition
Innocent Misrepresentationstatement believed to be true but are not
Negligent Misrepresentation: through carelessness
Equal to Scienter.
Is treated as fraudulent misrepresentation, even though the misrepresentation was not purposeful. |
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Term
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Definition
When on party in the relationship dominates the other party, therefore unfairly influencing hime or her.
Contract is Voidable.
Confidential or Fiduciary Relationship.
Relationship of dependence.
Influence or Persuasion.
Weak party talked into doing something not beneficial to him or herself. |
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Term
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Definition
Forcing a party to enter into a contract under fear or threat makes the contract voidable.
Threatened act must be wrongful or illegal.
Improper Threat.
Threat to exercise legal rights (criminal or civil suit).
Economic or physical. |
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Term
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Definition
Standard-Form (Adhesion) Contracts.Preprinted contract in which the adhering party has no opportunity to negotiate the terms of the contract.
“Take-it-or-Leave-it” adhesion contracts. |
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Term
| Adhesion Contracts Procedural |
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Definition
| One sided bargains in which one party has substantially superior bargaining power and can dictate the terms of the contract. |
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Term
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Definition
| Stipulates what types of contracts must be in writing. It denies enforceability to certain contracts that do not comply with it requirements. |
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Term
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Definition
| A contract that cannot, by its own terms, be performed within one year frim the day after the contract is formed must be in writing to be enforceable. |
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Term
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Definition
Is an exception to the applicability of statute of frauds.
In cases involving contracts relating to the transfer of interests in land, a court may grant specific performance(performance of the contract according to its precise terms) of an oral contract that has been partially performed. |
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Term
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Definition
| Oral representations or promises made prior to the contract’s formation or at the time the contract was created, may not be admitted in court. |
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Term
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Definition
| Transfer of contractual rights is an assignment. |
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Term
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Definition
| Transfer of contractual duties is a delegation. |
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Term
| Third Party Beneficiary (328) |
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Definition
Exception to the doctrine of privity of contract arises when the original parties to the contract intend at the time of contracting that the contract performance benefits a third person.
Intended beneficiary- the third party has legal right and can sue the promisor directly for breach of the contract. |
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Term
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Definition
| benefit that incidental beneficiary receives from a contract between two parties is unintentional. |
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Term
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Definition
| A condition that must be fulfilled before a party's performance can be required |
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Term
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Definition
| When a condition operates to terminate a partys absolute promise to perform. When someone cannot fully perform a duty the contract |
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Term
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Definition
| The contract call for the parties to perform their respective duties simutaneously. Parties must carry out mutual performance or contract can void. |
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Term
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Definition
| The contract comes to an end when both parties fulfill their respective duties by performing the acts they have promised. |
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Term
| Substantial Performance(339) |
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Definition
| A party who in good faith performs substantially all of the terms of contract can enforce the contract against the other party under the doctrine of substantial performance |
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Term
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Definition
| When the party completely performs to the contract exactly as agreed. |
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Term
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Definition
| Nonperformance of a contractual duty, it is material breach when it is not substantial |
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Term
| Anticipatory Repudiation(343) |
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Definition
| Before either party to a contract has a duty to perform one of the parties may refuse to carry out his or her contractual obligation. This results in material breach |
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Term
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Definition
Discharge by rescission- contract is cancelled and both parties back to previous position prior to contract.
anticipatory repudiation |
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Term
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Definition
| Supervening events (such as fire) may make performance impossible ib an objective sense. |
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Term
| Compensatory Damages(353) |
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Definition
Compensate the injured party for damages compensate the injured partly only for damages actually sustained and proved to have arisen directly from the loss of the bargain caused by the breach of contract. (to cover direct losses and costs)
Sale of Land: specific performance. |
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Term
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Definition
Foreseeable damages that result from a party's breach of contract. (Special Damages)
Differs from compensatory in theat they are caused by special circumstances beyond the contract itself.
Indirect and unforseeable costs, injuries and damages. |
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Term
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Definition
| (to punish and deter wrongdoing) Generally are not recoverable in contract law, even for an intentional breach or contract. |
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Term
| Mitigation of Damages(357) |
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Definition
A rule requiring a plaintiff to have done whatever was reasonable to minimize the damages caused by the defendent
Duty owed depends on the nature of the contract. |
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Term
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Definition
| A contract provides a specific amount to be paid as damages in the event of future default or breach of contracts |
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Term
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Definition
| A remedy whereby a contract is canceled and the parties are restored to the original positions that they occupied prior to the transactions. |
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Term
| Specific Performance (360) |
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Definition
| An equitable remedy requiring the breaching party to perform as promised under the contract. Usually granted when money is inadequate remedy. |
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Term
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Definition
| A court-ordered correction of a written contract so that it reflects the true intentions of the parties. |
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Term
| Election Of Remedies (363) |
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Definition
When the remedies are inconsistent with one another, the commn law f contracts requires the party to choose which remedy to pursue. UCC rejects election of remedies.
Cumulative in nature and include all the available remedies for breach of contract. |
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Term
| Shrink-Wrap Agreement (375) |
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Definition
| Is an agreement whose terms are expressed inside a box in which the goods are packaged. |
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Term
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Definition
An item must be tangible, and it must be movable.
Tagable - phyisical existence that can be touched and seen
Intangable- conceptual existence, such as corporate stocks and bonds. |
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Term
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Definition
| A person who is engaged in the purchase and sale of goods. Under UCC is person who deals in goods in the sales contract. |
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Term
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Definition
A lessor and lessee's bargain with repect to the lease of goods as found in their language.
Lessor- on who transfers the right to the possession and use of goods under a lease.
Lessee is one who acquires the right to the possession and use of goods.
Lessee is one party leasing goods from lessor. |
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Term
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Definition
Before goods are passed from lessor to the lessee, the goods must be 1) in existence 2) identified as the specific goods designated in contract.
Identification takes place when specific goods are designated as the subject matter of a sales or lease contract. |
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Term
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Definition
Delivery arrangement if no agreement can determine when title passes to buyer. Shipment contract: seller is required to ship goods by carrier, like a truck company, under contract the seller is required only to deliver the goods into the hands of a carrier, and title passes to buyer at the time and place of shipment [UCC 2-401(2)(A)]
ROL passes to Buyer when tendered to Carrier. If goods damaged in transit, Buyer’s loss. |
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Term
| Destination Contract(422) |
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Definition
Seller required to deliver goods to specific destination, title passes to the buyer when the goods are tendered at that destination. [UCC 2A]
ROL passes to Buyer when goods tendered at particular Destination. |
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Term
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Definition
| Delivery arrangement if no agreement can determine when title passes to buyer. Shipment contract: seller is required to ship goods by carrier, like a truck company, under contract the seller is required only to deliver the goods into the hands of a carrier, and title passes to buyer at the time and place of shipment [UCC 2-401(2)(A)] |
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Term
| Destination Contract(422) |
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Definition
| Seller required to deliver goods to specific destination, title passes to the buyer when the goods are tendered at that destination. [UCC 2A] |
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Term
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Definition
| A person without knowledge of circumstances that would make a person of ordinary prudence (wisdom or smartness) inquire (raise question) about the validity of the sellers title to the goods. |
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Term
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Definition
| The moment the contract goods are identified by the seller or lessor, the buyer or lessee has special property that allows the buyer or lessee to obtain necessary insurance coverage for those goods even before the risk of loss has passed. [UCC 2, 2A] |
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Term
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Definition
| someone who temporarily cares for the personal property of another, without passage of title. |
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Term
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Definition
Seller must transfer and deliver conforming goods.
Buyer must accept and pay for conforming goods.
In the absence of an agreement between Seller and Buyer, UCC Article 2 controls as set out below. |
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Term
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Definition
When the seller or lessor makes conforming goods available to the buyer such as a package delivery and giver the buyer whatever notification reasonably necessary so that buyer can take delivery.
With reasonable notice.
At a reasonable hour.
In a reasonable manner.
Exactly, unless otherwise agreed. |
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Term
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Definition
| Goods that conform to the contract description in every way are called conforming goods. To fulfill contract seller or lessor must either deliver or tender delivery of conforming goods. [UCC 2,2A] |
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Term
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Definition
| If goods or tender(unconditional offer to perform an obligation) of delivery fails in any repect to confrom to the contract, the buyer or lessee has the right to accept the goods, reject, or accept part and reject part |
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Term
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Definition
| Exception to perfect tender. When delivery is rejected because of nonconforming goods and the time for performance has not yet expired, the seller or lessor can attempt to "cure" the defect with the contract time for performance. |
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Term
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Definition
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Term
| Revocation of Acceptance(449) |
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Definition
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Term
| Anticipatory Repudiation(443) |
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Definition
| Before the time of contract performance one party communicates intention not to perform, party can 1)treat repudiation as a final breach by pursuing a remedy or 2)wait to see if the repudiating party will decide to honor the contract despite the declair of breach. |
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Term
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Definition
| Buyer has right to inspection before paying: |
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Term
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Definition
a single contract that requires the buyers good to be delivered in two or more lots of time and paid seperately. Can only reject an installment if the nonconformity substantially impairs the value of installment.
EX. Defective tractor part is key to make it work. |
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Term
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Definition
A warranty is an assurance of fact upon which a party may rely.
Warranty of Title.
Express Warranty.
Implied Warranty of Merchantability.
Implied Warranty of Fitness for a Particular Purpose.
Implied warranty arising from the course of dealing or trade usage. |
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Term
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Definition
Automatically arises in most commercial sales transactions.
UCC-312 creates 3 warranties:
Good Title:Sellers warrent good and valid title of good sold
No Liens-protects buyers who are unaware of any claims charges or security interest.
No Infringements. |
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